Orleans Criminal
District Court,

Magistrate Court 
Municipal Court:

2018 Review

 

TABLE OF CONTENTS
I. Executive Summary........................................................................................................................................ 3
II. Introduction .................................................................................................................................................. 12
III. Methodology ............................................................................................................................................... 13
IV. Judicial Ethics & Conflicts of Interest in Orleans Parish Criminal Courts .......................................... 15
A. Campaign Finance ............................................................................................................................... 15
B. One-Party Sidebars ................................................................................................................................. 24
C. Intolerance & Prejudice ........................................................................................................................ 26
V. Victim Rights ................................................................................................................................................ 29
A. Victims in Magistrate Court .................................................................................................................. 30
B. Untreated Crime Victim Trauma .......................................................................................................... 31
C. The Traumatized Victim and Testimony in Court ............................................................................. 35
VI. Bail, Fines and Fees .................................................................................................................................... 40
A. The Return on Indictment Process ...................................................................................................... 40
B. Municipal Court Bail Reform ................................................................................................................. 50
C. Drug Test and Other Court Fees ......................................................................................................... 52
VII. Incarceration and Other Sanctions ...................................................................................................... 55
A. Contempt ................................................................................................................................................ 55
1. Contempt for Failure to Hire a Private Attorney ........................................................................... 56
2. Contempt for a Positive Drug Screen Test ..................................................................................... 63
B. Guilty Pleas for Incarceration and Habitual Offender Status ........................................................ 69
C. Marijuana Cases .................................................................................................................................... 71
VIII. Efficiency ................................................................................................................................................... 74
IX. Acknowledgements .................................................................................................................................. 77

2

 I. EXECUTIVE SUMMAR Y
Court Watch NOLA (CWN) is a non-profit organization with the mission of promoting reform in the
Orleans Parish criminal court system through civic engagement and courtroom observation. This
report encompasses the data collected and the observations made by 113 CWN volunteers from
January 1, 2018 to December 31, 2018 in Criminal District, Magistrate, and Municipal Courts with a
total of 810 court settings observed. This report explores the topics of conflicts of interest, victim
rights, bail, right to counsel, fines and fees, criminal contempt, pre-trial drug testing and efficiency
in the Orleans Parish criminal courts and the larger criminal justice system during 2018.
Judicial Ethics--Campaign Financing
The Code of Judicial Conduct teaches judges that, in order for the community to retain
confidence in them, the judge must not only be independent and honest, but just as importantly,
the judge must be believed by all to be independent and honest. 1 In examining campaign
contributions from 2008-2018, CWN found that Judge Paul Bonin received a $1,000 campaign loan
from ETOH Monitoring, LLC (“ETOH”) executives in his successful 2016 election2 and at least $8,150
in campaign financing from ETOH monitoring executives over the last ten years. 3 Judge Bonin was
found to have steered defendants to the ETOH for ankle monitoring in 23 cases. On several
occasions, Judge Bonin refused to release the defendants from jail until the defendant’s family
had arranged for ETOH to establish ankle monitoring services.4 On several other occasions, Judge
Bonin refused to release criminal defendants from their ankle monitors until the defendant paid
ETOH all remaining fees the defendant owed to ETOH. In at least two cases, Judge Bonin
threatened to incarcerate the defendant for failing to pay ETOH. In 2018, ETOH’s ankle monitoring
cost approximately $10 a day, and Judge Bonin often required criminal defendants to wear ankle
monitors for months.
●

Recommendation 1: Judges should avoid conflicts of interest that reflect adversely on the
judge’s impartiality, interfere with the proper performance of the judge’s duties, or exploit
the judge’s judicial position. Judges should not accept campaign funds and loans that
might reasonably appear as influencing the judge’s official conduct or undermining the
judge’s independence, integrity, or impartiality. Where it is impossible for a judge to avoid
a conflict of interest, it is incumbent upon the judge to disclose the conflict of interest to
the relevant parties to avoid the impression of impropriety.

See Leslie Abramson, Canon 2 of the Code of Jud. Conduct, 79 Marq. L. Rev. 962 (1996).
La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 59725 for Paul Bonin (8/10/16).
3 La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 61852 for Paul Bonin (1/19/17); La. Ethics Admin. Program, La.
Campaign Fin. Rep. No. 60688 for Paul Bonin (11/4/16); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 35430 for
Paul Bonin (2/15/13); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 32109 for Paul Bonin (8/8/12); La. Ethics Admin.
Program, La. Campaign Fin. Rep. No. 804529 for Paul Bonin (10/4/08).
4 Court Transcript transcribed by Stenographer Eve Kazik, Criminal District Court Section D., Case No. 542162, (Oct. 24,
2012).
1
2

3

 Judicial Ethics--One-Party Sidebars
From 2016 until present, CWN has tracked one-party sidebars, the discussion between the judge
and either the defense or the prosecution without the opposing party present, conducted at the
bench or in judicial chambers, and outside the earshot of the public. According to the Judicial
Canons, a judge shall not permit private or ex parte interviews, arguments, or communications
designed to influence their judicial action in any case. 5 These ex parte sidebars often occur during
one-party sidebars. In fact, one the best way we have to reduce back-room dealings between
the powerful players of our system and judges is by reducing the ex parte meetings that are
evidenced in one-party sidebars.
●

Recommendation 2: Where a one-party sidebar is absolutely necessary for administrative
reasons, judges should announce to the public that the facts of a case are not being
discussed or that the matter being discussed is purely administrative. Judges should
attempt to discontinue the practice of one-party sidebars, since it gives a public
impression that undermines confidence in the judge’s independence, integrity, and
impartiality.
Judicial Ethics--Intolerance and Prejudice

Canon 3 of the Code of Judicial Conduct states in part, “A judge shall perform judicial duties
without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or
conduct manifest bias or prejudice, and shall not permit staff, court officials or others subject to
the judge's direction and control to do so.” 6 In 2018, CWN volunteers observed 16 incidents in
Magistrate Court, 11 incidents in Criminal District Court, and one incident in Municipal Court where
the CWN volunteer perceived someone in the court “was treated inappropriately or differently
based on gender, race, ethnicity, religion, age, disability status, sexual orientation, or economic
status,” with racial prejudice being the most common type of perceived discrimination. Permitting
a public official to openly engage in discrimination encourages the public to believe that
discriminatory attitudes, statements, and actions are acceptable, normal, and thus can be
emulated and even escalated.7
●

Recommendation 3: Judges should refrain from any action or statement that could give
the impression of bias against a defendant or other individual in their courtroom based on
gender, race, ethnicity, religion, age, disability status, sexual orientation, or economic
status. Judges have the responsibility of ensuring that prejudice and bias is not tolerated
by the lawyers and court staff in the judge’s courtroom.

La. Code Jud. Con. § 3(A)(6) (2019).
La. Code Jud. Con. § 3 (2019).
7 Brian Levin & John David Reitzel, Cal. State University, San Bernadino Ctr. for the Study of Hate & Extremism, Rep. to the
Nation: Hate Crimes Rise in the U.S. Cities and Counties in Time of Division & Foreign Interference (May 2018),
https://csbs.csusb.edu/sites/csusb_csbs/files/2018%20Hate%20Final%20Report%205-14.pdf. See also Anti-Defamation
League, https://www.adl.org/education/resources/tools-and-strategies/pyramid-of-hate-en-espanol (last visited Mar. 9,
2019).
5
6

4

 Victim Rights--Victims in Magistrate Court
Since March 2018, assistant district attorneys no longer appear for 14 out of 19 Magistrate Court
settings. That means there is no assistant district attorney making bail arguments, speaking on the
victim’s behalf, or speaking to victims in Magistrate Court in more than ⅔ of Magistrate Court
settings. Often, crime victims have pivotal information about the defendant’s likelihood of
returning to court and likelihood of committing new crimes upon pre-trial release.8 Without the
prosecutor in Magistrate Court, the victim has lost a pivotal opportunity to transmit whether the
defendant poses a danger to them or anyone else in the larger community.
●

Recommendation 4: The Orleans Parish District Attorney’s Office should regularly attend
and take part in all first appearance hearings in Magistrate Court. When crime victims have
information that relates to the defendant’s pre-trial release, the prosecutor should ensure
that such information is transmitted to the Magistrate or Commissioner who is determining
pre-trial release.
Victim Rights--Untreated Victim Trauma

Experts in the victim advocacy field have concluded that a more effective response to victim
trauma will reduce repeat victimization and future offending. 9 Crime victims with untreated
trauma can exhibit aggressive, retaliatory behaviors and/or engage in illicit substance use, all
leading to increased rates of arrest.10 When CWN volunteers were asked to record the number of
Magistrate Court cases where the defendant could also potentially be considered the victim of a
crime, CWN volunteers found that in 77% of cases, the defendant may have been defending
himself or herself from another individual. 11 Despite the well-documented correlation between
chronic exposure to trauma and an increased rate of arrest, 12 the Louisiana Crime Victim
Reparation Board is currently prohibited from providing resources to any non-sex crime victim who
has been convicted of a felony in the last three years before becoming a crime victim, or any
crime victim who is currently on probation or parole. 13 Louisiana House Bill 85 would eliminate the
Int’l Ass’n of Chiefs of Police Victim Services Comm., Law Enforcement's Role in Supporting Victims' Needs Through pretrial Just. Reform (June 2015), https://www.theiacp.org/sites/default/files/2018-08/SupportingVictimsThroughpretrialReform.pdf (“If the standard procedure for determining pre-trial release is consistently informed by the results of a risk
assessment and testimony provided by the victim(s), as opposed to a static bond schedule, better informed decisions
can be reached. Institutionalizing this practice also helps meet the need of victims to be heard throughout the justice
process”).
9 Jeremy Travis, Summoning the Superheroes: Harnessing Sci. & Passion to Create a More Effective & Humane Response
to Crime: 25th Anniversary Keynote Address, in The Sentencing Project, To Build a Better Crim. Just. Sys.: 25 Experts
Envision the Next 25 Years of Reform, 5-13 (Marc Mauer & Kate Epstein eds., 2012), available at
http://www.sentencingproject.org/wp-content/uploads/2016/01/To-Build-a-Better-Criminal-Justice-System.pdf.
10 Lena Jäggi et al., The Relationship Between Trauma, Arrest, and Incarceration History Among Black Ams.: Findings from
the Nat’l Survey of Am. Life, 6 Society and Mental Health 187-206 (2016).
11 N = 26 observations of Magistrate Court.
12 Deborah Prothrow-Stith, The Promise of Prevention: Public Health as a Model for Effective Change, in The Sentencing
Project, To Build a Better Criminal Justice System: 25 Experts Envision the Next 25 Years of Reform, 28-29 (Marc Mauer &
Kate Epstein eds., 2012), available at http://www.sentencingproject.org/wp-content/uploads/2016/01/To-Build-a-BetterCriminal-Justice-System.pdf.
13 Alysia Santo, For Black Crime Victims with Criminal Records, State Help is Hard to Come by, The Marshall Project &
Reveal from the Ctr. for Investigative Reporting, U.S.A. Today, Sept. 13, 2018, available at
https://www.usatoday.com/story/news/nation/2018/09/13/crime-victim-compensation-funds-blacks/1218283002/.
8

5

 prohibition against providing resources to crime victims and their families who have been
convicted of a crime or who are currently on probation or parole.14
●

Recommendation 5: State political leaders and the community at large should support
Louisiana House Bill 85 and eliminate the discriminatory prohibition against crime victims
receiving crime victim compensation when such victims have a criminal conviction or are
on probation or parole.
Victim Rights--The Traumatized Victim and Testimony in Court

The majority of crime victims do not report the crime they are victimized by, and many others
decide not to proceed with criminal charges after reporting.15 In Louisiana, crime victims and
witnesses who are under 17 years of age or who are developmentally disabled can testify in
another room outside of the court and be simultaneously televised by closed-circuit television to
the court and jury.16 There is nothing in either federal or Louisiana State Law that limits the ability
of an equally-traumatized adult victim or witness from being able to testify via closed-circuit
television if an important public policy requirement is present and the defendant is unable to
reliably testify without a closed-circuit television.17 CWN volunteers tracked the number of times a
fragile victim or witness either testified or was asked to testify in criminal court. Out of a total of
seven observations, CWN volunteers indicated that no Judge offered a confidential space (i.e.,
not the public courtroom) where the victim or witness could testify. Fragile victims or witnesses
observed by CWN volunteers included three victims of non-sexual offenses, two survivors of sex
crimes, and two witnesses with mental or emotional disabilities.
•

Recommendation 6: The Louisiana State Legislature should consider amending Louisiana
Statutes § 15:283 to allow an adult victim or witness to testify via simultaneous televised
testimony (1) if expert testimony shows the victim or witness would likely suffer serious
emotional distress, and (2) without such simultaneous televised testimony, the victim or
witness could not reasonably communicate their testimony to the court or to the jury.
Where possible, the Orleans Parish District Attorney should consider making a motion
requesting such a traumatized adult victim or witness be able to testify via closed-circuit
television if expert testimony establishes that trauma had such a debilitating effect on the
victim or witness and the reliability of the victim or witness’ testimony is otherwise assured.

H.B. 85, 2019 H. Legis. Servs., Reg. Sess. (La. 2019), available at
http://www.legis.la.gov/Legis/ViewDocument.aspx?d=1116146.
15 Judith Lewis Herman, The Mental Health of Crime Victims: Impact of Legal Intervention, 16 Journal of Traumatic Stress
159-166 (2003), available at https://onlinelibrary.wiley.com/doi/epdf/10.1023/A%3A1022847223135.
16 La. Stat. Ann. § 15:283(A)(1)(2).
17 Meg Garvin, et al., Allowing Adult Sexual Assault Victims to Testify at Trial via Live Video Tech., in Nat’l Crime Victim Law
Inst. Viol. Against Women Bulletin, 1 (2011), available at law.lclark.edu/live/files/11775-allowing-adult-sexual-assaultvictims-to-testify. See also Natalie Montell, A New Test for Two-Way Video Testimony: Bringing Maryland v. Craig into the
Technological Era, 50 U. Louisville L. Rev. 361, 373 (2012).
14

6

 Bail, Fines and Fees--The Return on Indictment Process
After the grand jury returns a “true bill” and a felony case is brought to Criminal District Court for
the first time, for at least 10 years if not longer 18 it has been the practice of the District Attorney’s
Office to argue for a bail increase without notifying the defense, without the defense attorney
present, without the defendant present, and without a written motion. The average bail amount
increased by 577% between Magistrate Court and Criminal District Court, from an average of
$165,103 in Magistrate Court to an average of $1,117,472 after the true bill indictment was filed in
Criminal District Court (the return on indictment). This amount decreased by only 6%, or an
average of $64,037, after the defense attorney had an opportunity to reargue bail, ultimately
averaging $1,053,435. Sometimes criminal defendants who had already paid their bail were
rearrested in criminal court without notice, even though they had followed all the conditioned
requirements of their bail bond release. Constitutional law requires the defense attorney to be
present when bail is argued at a return on indictment. The defendant himself or herself should also
be present in court for this proceeding if the prosecution chooses to argue for a bail increase.
●

Recommendation 7: The defendant and the defense attorney must be notified and
produced, respectively, for any bail argument; a bail argument should not be an ex parte
proceeding. When a defendant is “charged at large,” they should be arrested and
brought to the arraignment proceeding where bail can be set if needed. Judges should
not entertain a bail argument without the defendant and the defense attorney present;
the defendant’s presence can only be waived for the bail argument by their attorney or
by the defendant’s voluntary failure to appear.

●

Commendation 1: CWN commends Chief Judge Keva Landrum-Johnson for ensuring
constitutional rights are upheld in her court during the return on indictment process. She
has been courageous in prohibiting an unsound practice from continuing in her
courtroom, persuasive toward others on the bench to abide by the Constitution, and
transparent with the public.
Bail, Fines and Fees--Municipal Court Compliance with the
2017 Municipal Bail Reform Law

In January 2017, New Orleans City Council passed comprehensive bail reform for all municipal
(city) offenses. The municipal bail reform statute requires that a defendant charged only with
municipal offenses and having no warrants19 or additional pending cases be released on their
own recognizance (with no bail)20 unless the defendant is charged with municipal battery, assault,
illegal carrying of a weapon, impersonating a peace officer, or domestic violence. 21 CWN is
pleased to report that of the 109 Municipal Court cases it reviewed, Municipal Court judges
complied with the Municipal Code Ordinances in all cases. In all cases in the CWN sample, in
Telephone Interview between Simone Levine and Defense Attorney Gary Wainright. (May 2, 2019); Telephone Interview
with Derwyn Bunton, Chief Dist. Defender, Orleans Pub. Defenders (Apr. 29, 2019).
19 New Orleans Mun. Code § 54-23 (2019).
20 New Orleans Mun. Code § 54-23(c) (2019).
21 New Orleans Mun. Code § 54-23(d) (2019).
18

7

 which defendants were eligible to be released on their own recognizance (“ROR”) under the
municipal bail reform statute, defendants in only 8 cases were ordered to pay bail without an
ROR. These eight cases all fell within the Municipal Bail Ordinance exceptions.
Bail, Fines and Fees--Drug Test Fees
Many observers have concluded that a user-pay system, in which criminal defendants are
required to pay court fines and fees to financially maintain the court system, poses more problems
than it offers solutions.22 Drug tests for Orleans Parish-based defendants cost $10 each, whereas
drug tests for out-of-town individuals cost $25 each.23 The amount that criminal defendants paid
for drug testing in Orleans Parish in 2018 totaled $74,233. 24 However, the cost of the drug testing
facility inside the court was $350,126, and the cost of the collections department staffing was
$133,996.80.25 Increasingly, experts have started to push judges to question whether drug testing
that would initially cost indigent users, but would later, when the indigent court users are unable
to pay, cost taxpayers--are in fact worth the cost.26 One of the main questions a judge should ask
is what the court’s larger objective behind its requirement for drug testing a defendant. 27 This is
especially true when the criminal case for which the defendant is charged neither relates to drugs,
nor is there solid evidence of the defendant’s drug abuse.28
Incarceration as Punishment--Contempt for Failure to Hire a Private Attorney
A judge has the power to fine or imprison a person for contempt of court if, broadly speaking, the
individual does not comply with the court’s lawful order.29 The United States Supreme Court (U.S.
Supreme Court) has warned of the potential for abuse in using imprisonment as a sanction for
contempt, citing it as an “arbitrary” power which is “liable to abuse,” and warning that “care is
needed to avoid arbitrary or oppressive conclusions.” 30 Additionally, research on procedural
fairness, which is an evidence-based practice endorsed by the American Judges Association,
National Center for State Courts, Conference of Chief Justices, and Conference of State Court
Administrators, 31 has shown that when the public has a positive perception of courtroom
Joseph Shapiro, All Things Considered: As Court Fees Rise, The Poor Are Paying the Price, Nat’l Public Radio (May 19,
2014), available at https://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor (“A yearlong NPR
investigation found that the costs of the criminal justice system in the United States are paid increasingly by the defendants
and offenders. It's a practice that causes the poor to face harsher treatment than others who commit identical crimes
and can afford to pay. Some judges and politicians fear the trend has gone too far”).
23 Orleans Criminal District Ct, Drug Testing, http://www.criminalcourt.org/drug-testing.html (last visited May 1, 2019).
24 Response to Public Records Request from Robert Kazik, Orleans Criminal District Ct. Judicial Adm’r, to Veronica Bard,
CWN Deputy Director (Feb. 19, 2019) (on file with CWN).
25 Interview with Robert Kazik, Jud. Adm’r, Orleans Parish Crim. Dist. Ct. (Apr. 15, 2019). The Collections Department is
required to collect all court fines and fees, not just drug test fees.
26 Jessica Brand, How Fines and Fees Criminalize Poverty: Explained, The Appeal, Jul. 16, 2018, available at
https://theappeal.org/fines-and-fees-explained-bf4e05d188bf/.
27 Telephone Interview with Lisa Foster, Co-Director, Fines and Fees Justice Ctr. (Apr. 16, 2019).
28 Id.
29 La. Code Crim. Pro. § 17.
30 Bloom v. Illinois, 391 U.S. 194, 202 (1968).
31 See Susanne Beier, et al., Influence of Judges’ Behavior on Perceived Procedural Justice, 44 J. of Applied Social
Psychology 57 (2014) (neutral observers may be better suited to making procedural fairness judgments than defendants
themselves because they may have “a more objective perception of the [defendant’s] actual treatment.”). Utah and
22

8

 procedure as fair, neutral, and respectful, it results in reduced recidivism and increased
compliance with court orders.32
CWN examined cases in which a defendant was held in contempt for failing to hire a private
defense attorney. In one example, Judge Paul Bonin originally remanded the defendant (so that
there was no bail the defendant could pay to be released) for 9 days until Judge Bonin changed
the order to allow the defendant to pay bail, and they were finally released after 4 days in jail. In
the second example found by CWN, Judge Darryl Derbigny sentenced a defendant to 25 hours
of community service for contempt in failing to hire a private defense attorney even though the
defendant had previously been appointed a public defender on an earlier and still open pending
case.
●

Recommendation 8: Courts should hold a defendant in contempt for failure to hire a
private defense attorney only if there is proof beyond a reasonable doubt that the
defendant willfully disobeyed the court’s order to hire a private defense attorney.
Additionally, courts should carefully determine a defendant’s ability to pay for a private
attorney before ordering them to do so. In addition to providing legal due process, it is
important for judges to meet the public’s expectations that courtroom procedure be fair,
neutral, and respectful.
Incarceration as Punishment--Contempt for a Defendant’s Positive Drug Screen

Orleans Criminal District Court judges may be punishing defendants for non-definitive drug test
results. While the Drug Testing Lab on the first floor of the Orleans Criminal District Courthouse is
capable of running initial drug screens, which produce presumptive results, 33 scientific best
practices require a secondary confirmatory test for the most accurate results. 34 The Drug Testing
Lab lacks the technology for this definitive confirmatory test, 35 yet Criminal District Court judges
are incarcerating, fining, and ordering community service for defendants who have presumptively
positive drug test results. Despite the problems with the lab analysis, at least 77 pre-trial defendants
were held in contempt for purportedly positive drug tests in 2018, with 59 pre-trial defendants
serving an average of 18 days in jail, including two pre-trial defendants who were held in
contempt of court in 2018 for positive drug screens for marijuana alone and jailed an average of
19 days.36

Alaska, two leaders in the procedural fairness movement, also use citizen observers to rate Judges as part of the two states’
official judicial performance evaluations. Hon. Steve Leben, The Procedural-Fairness Movement Comes of Age, Nat’l Ctr.
for State Cts., Trends in State Cts. 60-61 (2014).
32 Resol. 12, Conf. of Chief JJs./Conf. of State Ct. Adm’rs, Access, Fairness and Pub. Trust Comm. (Jul. 31, 2013),
http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07312013-Support-State-Supreme-Court-LeadershipPromote-Procedural-Fairness-CCJCOSCA.ashx.
33 Agreement for Services Between DCI and New Orleans Criminal Ct. (June 8-9, 2019) (on file with CWN).
34 Margaret Jarvis, et al., Consensus Statement: Appropriate Use of Drug Testing in Clinical Addiction Med., 11 J. of
Addiction Med. 163-73 (2017).
35 See Response to Public Records Request from Robert Kazik, Orleans Criminal District Ct. Judicial Adm’r, to Veronica Bard,
CWN Deputy Director (Feb. 21, 2019) (on file with CWN).
36 Sources: Orleans Parish Sheriff’s Office Docket Master & Orleans Criminal District Court Clerk’s Office.

9

 ●

Recommendation 9: Judges should not sanction defendants without proper testing that
follows scientific best practices. The Drug Testing Lab should research available definitive
confirmation testing options. Once the Lab has a scientifically accepted procedure in
place, the Lab should execute its procedures consistently in every case. Judges should
carefully consider their objectives for ordering each drug test and question whether a drug
test required of a specific defendant at that specific moment will help achieve those
judicial objectives.
Incarceration as Punishment--Use of the Habitual Offender Laws

Louisiana’s habitual offender law requires judges to increase mandatory minimum sentences for
criminal defendants who have previously been convicted of felony offenses when judges are
requested to do so by the prosecution.37 From January 2009 until 2017, the Orleans Parish District
Attorney used the habitual offender law in sentencing more often than any other Louisiana
Parish.38 However, with recent changes made to state law relating to the sentencing of habitual
offenders, the Orleans Parish District Attorney’s Office has used the habitual offender law in
sentencing less than it had before.39 CWN also found a slight decrease in the rate of defendants
who pleaded guilty after someone had referred to them as a habitual offender from 16% in 2017
to 13% in 2018.40
Incarceration as Punishment--New Orleans’s New Municipal Marijuana Laws
In March 2016, Mayor Landrieu signed an ordinance passed by the City Council that allowed the
New Orleans Police Department to issue a summons instead of making an arrest in certain
marijuana cases and to require a fine instead of jail time.41 While several websites, particularly
tourist or marijuana enthusiast websites, tout the change in the law as “decriminalization,” 42
marijuana remains very much illegal in New Orleans, and it is essential that the public be educated
as to the current status of the law. Currently there are more than 25 different exceptions that would
allow for arrest instead of a municipal summons on a marijuana possession case. That being said,
in 2018, NOPD issued a summons in 85% of the 2,871 total incidents involving marijuana
possession.43

La. Stat. Ann. § 15:529.1.
Reveal: 10 Years or Life, Ctr. for Investigative Reporting (Oct. 6, 2018), available at
https://www.revealnews.org/episodes/10-years-or-life.
39 Eve Abrams, Habitual Offender Prosecutions down in New Orleans, The Lens, Nov. 29, 2018, available at
https://thelensnola.org/2018/11/29/habitual-offender-prosecutions-down-in-new-orleans/; Matt Sledge & John
Simerman, New Orleans DA, Criminal Court and Cops Make Budget Pitches to Council, New Orleans Advocate, Nov. 13,
2018, available at https://www.theadvocate.com/new_orleans/news/courts/article_ed110fa0-e78e-11e8-839daf0f2a46754f.html.
40 N = 456 (2017), 487 (2018) Criminal District Court observations.
41 Kevin Litten, NOPD Marijuana Arrests Plunged to 1 Percent After Ordinance Change, Nola.com, Mar. 28, 2018, available
at https://www.nola.com/politics/2018/03/marijuana_ordinance_new_orlean.html.
42 Marijuana Policy Project, La. Med. Marijuana Program Still not Functioning, https://www.mpp.org/states/louisiana/ (last
visited Mar. 1, 2019). See also Kush Tourism, Is Weed Legal in La.? La. Marijuana Laws, https://kushtourism.com/louisianamarijuana-information/ (last visited May 1, 2019).
43 Source: Municipal and Traffic Court of New Orleans Clerk of Court. n = 2,437 (persons issued summons for marijuana
possession), 434 (persons arrested for marijuana possession).
37
38

10

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Recommendation 10: The public and the tourism industry should educate themselves on
the marijuana laws in New Orleans and ensure public material such as websites provide
the correct information about when an individual is able to receive a summons for a New
Orleans Municipal Code marijuana violation and when an individual is not able to receive
a summons. The tourism industry and others should remove all references to marijuana
being decriminalized in New Orleans.
Efficiency--Criminal District Court’s Oldest Cases

Tracking efficiency has been part of CWN’s core mission for the last 11 years. It is essential when a
not-for-profit monitors for efficiency that the not-for-profit examines the real drivers of inefficiency.
Instead of placing the full blame for inefficiency on judges, it is a priority to reveal the real causes
of inefficiency in the Orleans Parish Criminal Courts, especially since, in many instances, judges are
powerless to stop the inefficiency. 44 CWN examined the ninety-eight oldest active cases in
Criminal District Court, beginning with a case instituted in 2005. The top reasons for delay in these
cases were: 34% because an incarcerated defendant was not brought to court when scheduled;
16% for continuances requested by the prosecution; 45 11% for continuances requested by the
defense;46 11% for continuances on joint motion (between the prosecution and the defense); 47
7% for continuances requested by the Court; 48 and in 6%, because the defendant appeared
without counsel. The type of delays CWN tracked involved anything from delays of days to delays
of months. CWN further analyzed the largest delay for why incarcerated defendants were not
brought to court by the responsible agency. Out of all of the delays caused by an incarcerated
defendant not being brought to court, in 57% of continuances, the Orleans Parish Sheriff’s Office
was responsible for not bringing the defendant to court; in 38% of continuances, the Louisiana
Department of Corrections was responsible for not bringing the defendant to court; and in 5% of
continuances, the Eastern Louisiana Mental Health System was responsible for not bringing the
defendant to court. The court and the prosecution can do little to get a jailed defendant into
court (the number one reason for inefficiency according to CWN data in Figure 24) if OPSO has
not informed the court or the prosecution which jail facility in which the defendant is located.
State v. Barnes, 72 So. 3d 938 (La. App. 4 Cir. 8/29/2011). This Court has previously found, in unpublished writ dispositions,
that it is an abuse of the trial court's discretion to deny a motion for continuance when both sides in a criminal case agree
to a continuance of trial; See also State v. Lee, 11–1176 (La. App. 4 Cir. 8/25/11); State v. Richardson, 09–0953 (La. App. 4
Cir. 7/20/09); State v. King, 11–0243 (La. App. 4 Cir. 2/18/11); State v. Terry, 11–0245 (La. App. 4 Cir. 2/18/11).
45 In 917 of these continuances, the minute entry in the docket merely said the case was continued by the State. In 29 of
these continuances, a law enforcement witness was unavailable. In 24 of these continuances, the Assistant District Attorney
(“ADA”) was unavailable. In 22 of these continuances, the ADA owed discovery to the defense. In 3 of these continuances,
the ADA was unprepared. In 2 of these continuances, a civilian witness for the prosecution was unavailable. In 1
continuance, the ADA had not requested the defendant to be brought from jail.
46 In 466 of these continuances, the minute entry in the docket merely said the case was continued by the defense. 80
continuances occurred because of a change in defense attorney. In 78 of these continuances, the defendant had been
released and did not return to court. 41 continuances occurred because the defense attorney was unavailable, and 7
continuances occurred because a witness for the defense was unavailable.
47 In 556 of these continuances, the minute entry in the docket merely said the case was continued by joint motion. In 47
continuances, the Court ruled the defendant incompetent, and in 35 continuances, the Court ruled the defendant
competent. 24 continuances occurred due to writs to the Fourth Circuit Court of Louisiana, and 17 continuances occurred
due to writs to the Supreme Court of Louisiana.
48 157 continuances occurred because the Court was closed. In 147 continuances, the Court was trying another case. In
94 of these continuances, the minute entry in the docket merely said the case was reset by the Court. In 76 of these
continuances, the case was transferred to another court.
44

11

 ●

Recommendation 11: Judges are not solely responsible for court inefficiency and the
public should educate themselves on this issue. The Orleans Parish Sheriff’s Office should
ensure that criminal defendants are brought to court. The Orleans Parish Sheriff’s Office
should also ensure that the court and the prosecution are properly notified as to whether
an incarcerated defendant is being held in the Orleans Justice Center or in another jail
within the jurisdiction of the Department of Corrections.
II. INTRODUCTION

CWN is a not-for-profit organization whose mission is to promote reform in the Orleans Parish
criminal court system through civic engagement and courtroom observation. One of CWN’s goals
is to empower the New Orleans community through legal education to demand transparency
and accountability of public officials. CWN is objective in its approach, neither siding with the
prosecution nor the defense on individual cases. Rather, CWN tries to increase public confidence
in the Orleans Parish Criminal Courts by examining aggregate trends in the Orleans Parish criminal
justice system and bringing transparency to court practices largely hidden from public view. It is
CWN’s belief that only when corruption and systemic conflicts are unearthed can New Orleans
elect the public officials it truly deserves as an educated and informed community; only when the
criminal justice system becomes more transparent and conflicts of interest are resolved does the
public come to trust the system. According to the American Sociological Association,
A conflict of interest arises when personal interest prevents an individual
from performing their professional or public obligations in an unbiased
manner. The consequences of these conflicts can be the loss of objectivity,
the potential for decreased effectiveness as a professional, and the
possibility of harm and/or exploitation of another party. 49
Conflicts of interest arise when an individual has private interests which could improperly influence
the performance of that individual’s official duties and responsibilities. Public officials who
succumb to conflicts of interest can undermine the way decisions and power affect the public,
as well as the way public resources and funds are used.
Conflicts of interest also occur in the not-for-profit sector. The loss of objectivity and conflicts of
interest in the not-for-profit arena can encourage the public to lend a blind eye to public
corruption and government ineffectiveness. This happens, for example, when a not-for-profit tries
to protect an ethically-challenged public official who may have previously aided the
organization. This encourages the public to believe that those institutions that are supposed to aid
in combatting corruption are really a part of the larger problem. As outgoing Special Agent in
Charge of the FBI for Louisiana Jeff Sallet, said of corruption in Louisiana,
The way the system has been set up, there's been neglect throughout the
Michael McDonald, Ethics & Conflict of Int., U. of B.C., ethics.ubc.ca/peoplemcdonaldconflict-htm/ (last visited May 1,
2019).
49

12

 years. The expectations of the people doing some of these jobs is, ‘Hey I'm
in an office, and I'm going to take what I can get.’ And the people around
them often fear confronting that. It is not much different from the fear I saw
in organized crime in New York City, where people don't want to take on
mob guys. People don't want to give up corrupt public officials, often
because they're afraid of the consequences.50
Successfully tackling corruption and conflict of interest in government officials has been shown to
lead to a wider acceptance of public institutions, decreased poverty and inequality levels,
respect for the rule of law, strengthened political stability, higher productivity, more innovative
thinking, and lower crime rates. Experts have pointed out that greater citizen trust is clearly needed
to tackle corruption, but it is common that “powerful individuals and their narrow circles of allies
do not have the slightest interest in benefiting anyone but themselves.”51
Through its extensive legal training of volunteers, CWN seeks to shorten the gulf between “insiders”
and “outsiders.” Outsiders are the crime victims, witnesses, defendants, and jurors. Insiders are the
public officials who run the system: the judges, prosecutors, defense attorneys, clerks of court,
police officers, sheriff department officials, and others. CWN teaches outsiders the language of
court so that outsiders can bring accountability and help to solve some of the problems that
insiders have so regularly lived with that they often (and unfortunately) no longer see as
problematic. Some of these problems include some of the highest rates in the country for murder,
gunshots, female homicide, wrongful conviction, and incarceration. All CWN volunteers undergo
eight hours of legal training before they are allowed into court to monitor. CWN volunteers are
New Orleanians: poor and wealthy; old and young; black, white, Asian, and Hispanic; newcomers,
and those from the most prominent New Orleanian families. CWN volunteers learn ethical
standards, criminal procedure, the tenets of objectivity, best-practices, constitutional rights, state
law, and municipal law. These New Orleanians observe Orleans Parish criminal courts and keep
New Orleans public officials accountable. They collected the data that comprises the report
below.

III. METHODOLOGY
In 2018, CWN collected the observations of 113 volunteers in three different Orleans Parish criminal
courts: Criminal District, Magistrate and Municipal. All observers participated in a two- day, eighthour training before they began independent observations, and some observers received
refresher trainings upon request.
Four physical data collection tools were used to record the data in the courtrooms: one for each
court plus an additional data collection tool for Municipal Court first appearances. These data
collection tools covered a wide variety of information, drawing primarily from CWN volunteers’ inEmily Lane, Public Corruption in La. ‘Can’t Get Much Worse,’ Says Outgoing FBI New Orleans Dir., Nola.com, Nov. 3,
2017, available at https://www.nola.com/crime/2017/11/public_corruption_fbi_new_orle.html.
51 Org. for Econ. Co-operation and Dev., Managing Conflict of Int. in the Pub. Sector: A Toolkit, 2005, at 7, available at
https://www.oecd.org/gov/ethics/49107986.pdf.
50

13

 court observations and from the individual court dockets of cases. Court dockets were provided
to CWN volunteers by the Orleans Parish Clerk of Court and the New Orleans Municipal Clerk of
Court.
The data recorded on the data collection tools was then entered into an online database using
Survey Monkey, a cloud-based survey development software. Data was exported to SPSS
(Statistical Package for the Social Sciences, V20) for data cleaning and analysis.
Data was collected from January 1, 2018 to December 31, 2018. A total of 810 court session
observations were conducted across all three courts. During these sessions, approximately 13,000
case appearances were observed, and key data was recorded. Details on the total observations
by court are presented below. The data presented in this report and collected by the CWN
volunteers is both quantitative and qualitative in nature.
Because CWN volunteers are not able to be present for all sessions of court in all courtrooms, it is
important to note that CWN’s data typically captures an underestimate of the number of
occurrences of any one examined issue. The data presented in this report, therefore, represents a
sample, or minimum number of incidents.
Figure 1 shows the number of court session observations (hereafter referred to as “observations”)
conducted in 2018 in each of the three courts. Hereafter, “all courts” refers to all criminal courts
that CWN currently monitors, namely Orleans Parish Criminal District Court, Orleans Parish
Magistrate Court, and New Orleans Municipal Court.

n = 810 total observations.

WATCH NO 10   PAGE

14

 IV. JUDICIAL ETHICS & CONFLICTS OF INTEREST IN ORLE ANS PARISH CRIMINAL COUR TS
A. CAMPAIGN FINANCE
In order to ensure the public’s faith in the independence of the judiciary, the public must believe
that judges are transparent and are not unduly influenced by the campaign contributions they
receive.52 According to a 2011 national public opinion poll, only 5% of Americans surveyed believe
that campaign contributions have no influence at all on judges, 53 and over 70% of Americans
believe that campaign contributions have some influence on judges’ decisions in the courtroom.54
According to this same poll, only 33% of those surveyed believe that the “justice system in the U.S.
works equally for all citizens,” while 62% believe that “[t]here are two systems of justice in the U.S.
– one for the rich and powerful and one for everyone else.” 55 Perhaps more telling than general
public polls, judges themselves report the influence campaign contributions have on the
independence of their judgments. In a 2002 survey of 2,428 state (lower, appellate, and supreme)
court criminal and civil judges, 26% of judges admitted that campaign contributions have at least
“some influence” on their decisions and 46% of judges said they believe contributions have at
least “a little influence.”56
CWN tracks the public’s perception and confidence in the criminal courts of New Orleans and
the confidence in those officials who work in the criminal courts. It is important for judges to
distance themselves from situations where their fairness and impartiality might reasonably be
questioned.57 Unless they embrace the public’s demand for accountability, the courts should not
be surprised when the public loses confidence and reacts with outrage over the lack of judicial
independence.58
The Louisiana Code of Judicial Conduct sets the standards by which all judges in the State of
Louisiana must abide. The Louisiana Code of Judicial Conduct is enforced by the Judiciary
Commission of Louisiana. The Code of Judicial Conduct states in part:
●

A judge shall respect and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary. . . A judge

James Sample et al., Fair Cts.: Setting Recusal Standards, Brennan Ctr. for Justice, at 9 (2008), available at
http://www.brennancenter.org/sites/default/files/legacy/Democracy/Recusal%20Paper_FINAL.pdf.
53 Greenberg, Quinlan, Rosner Research Inc. & American Viewpoint, Justice at Stake Frequency Questionnaire,
https://www.brennancenter.org/sites/default/files/2001%20National%20Bipartisan%20Survey.pdf, at 4 (Oct. 30-Nov. 7,
2001).
54 Adam Skaggs, Buying Just.: Impact of Citizens United on Judicial Elections, Brennan Ctr. for Just., 4 (2010), available at
https://www.brennancenter.org/sites/default/files/legacy/publications/BCReportBuyingJustice.pdf?nocdn=1.
55 Greenberg, Quinlan, Rosner Research Inc. & American Viewpoint, Justice at Stake Frequency Questionnaire, at 4;
Justice at Stake Campaign, March 2004 Survey Highlights: Americans Speak Out on Judicial Elections (2004) page 4-10,
faircourts.org/ftles/ZogbyPollFactSheetpdf (accessed Mar. 26, 2019, info. no longer accessible online).
56 Greenberg, Quinlan, Rosner Research Inc. & American Viewpoint, Justice at Stake Frequency Questionnaire, at 5; See
also Stuart Banner, Disqualifying Elected Judges from Cases Involving Campaign Contributors, 40 Stan. L. Rev. 449, 463-66
(1988) (providing examples of comments by elected judges that suggest that contributions influence case outcomes).
57 Greenberg, Quinlan, Rosner Research Inc. & American Viewpoint, Justice at Stake Frequency Questionnaire, at 4; Justice
at Stake Campaign, March 2004 Survey Highlights: Americans Speak Out on Judicial Elections (2004) page 4-10,
faircourts.org/ftles/ZogbyPollFactSheetpdf (accessed Mar. 26, 2019, info. no longer accessible online).
58 Id.
52

15

 ●

●

shall not allow family, social, political, or other relationships to influence judicial conduct or
judgment.59
A judge shall refrain from financial and business dealings that tend to reflect adversely on
the judge's impartiality, interfere with the proper performance of judicial duties, exploit the
judge's judicial position, or involve the judge in frequent transactions with lawyers or
persons likely to come before the court on which he or she serves. 60
A judge shall not accept, directly or indirectly, any gifts, loans, bequests, benefits, favors
or other things of value that might reasonably appear as designed to affect the judgment
of the judge or influence the judge’s official conduct, or would appear to a disinterested
reasonable person to undermine the judge’s independence, integrity, or impartiality. 61

The Code of Judicial Conduct teaches judges that, in order for the community to retain
confidence in them, the judge must not only be independent and honest, but just as importantly,
the judge must be believed by all to be independent and honest.62 As one expert wrote, "Justice
must not only be done, it must be seen to be done. Without the appearance as well as the fact
of justice, respect for the law vanishes in a democracy.” 63 The Judge’s actions need not be
intentional,64criminal or tortious for the judge to be sanctioned. 65 If there is clear and convincing
evidence that a judge violated the Louisiana Code of Judicial Conduct, this is sufficient for
sanction.66 The canons’ broader prescription against the influence of outside individuals seeks to
ensure that a judge will not allow family or other relationships to influence the exercise of judicial
conduct or judgment, regardless of whether the judge is actually presiding over a case involving
a friend or relative.67
In In re Morvant, 68 the Louisiana Supreme Court determined that Judge Morvant violated
Louisiana Judicial Canon 2B, when the judge required defendants to pay money to a not-forprofit as a condition of probation for those who appeared in front of his court. A violation of the
judicial canons occurred, but, as an advisory council member, the judge’s activity did not meet
the more serious threshold, since they had “no fiduciary obligations, . . . and . . . no authority to
direct how . . . funds are utilized.”69 Regardless, the judge was found to have advanced the private
interests of the program and his own private interests since “those associated with the program . .
. could only have benefitted in the event he were reelected.” 70 The Supreme Court determined
that the judge, “potentially placed the judiciary as a whole in a negative light because the
general public could reasonably perceive he misused his judicial power to favor an organization,
La. Code Jud. Con. § 2(A)(B).
La. Code Jud. Con. § 5(C).
61 La. Code. Jud. Con. § 6(B)(1).
62 See Leslie Abramson, Canon 2 of the Code of Judicial Conduct, 79 Marquette L. Rev. 962 (1996).
63 Id. at 963.
64 In re Hunter, 02-1875, p. 16 (La. 8/19/02); 823 So.2d 325, 336 (“[A] judge may also, through negligence or ignorance not
amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office
into disrepute.). See also In re Elloie, 05-1499, pg. 30 (La. 1/19/06); 921 So. 2d 882.
65 In re Hunter at 955.
66 In re Elloie at 30.
67 Id. at 60.
68 In re Morvant, 09-0747 (La. 6/26/09) 5 So.3d 74.
69 Id. at 77.
70 Id.
59
60

16

 although he did not finally profit by his actions.”71
Likewise, in In re: Donald Johnson, the Louisiana Supreme Court found that Judge Donald Johnson
violated the Louisiana Code of Judicial Conduct when he required defendants to pay fines to
various civic or charitable organizations in cases where the charitable organizations were not
themselves the crime victims.72 As was the case in In re Morvant, although the judge’s activity did
not demonstrate that he personally financially profited, the Louisiana Supreme Court still found his
conduct amounted to “persistent and public conduct prejudicial to the administration of justice
that brought the judicial office into disrepute.” 73 The court commented at length that the Judge
“placed the judiciary as a whole in a negative light because it led private groups to believe they
could properly solicit funds for worthy causes from Judge Johnson—in other words, they were left
with the perception that he could use his judicial office for their private benefit, which flies in the
face of well accepted ethical precepts.”74
Against this legal backdrop, CWN examined Orleans Parish Criminal District Court judges’ use of
pre-trial programs for which defendants were required to pay out of pocket. While the above
Louisiana Supreme Court examples pinpoint cases where a judge did not benefit financially but
were still nonetheless sanctioned, CWN’s report focuses on activity where a judge did appear to
benefit financially from requiring the parties in front of the judge to engage in specific activity.
Specifically, CWN examined the 2018 use of ankle monitoring companies by individual Orleans
Parish Criminal District Court judges and the New Orleans Magistrate Judge. 75 Ankle monitoring
companies, generally speaking, place a GPS device on the defendant’s ankle and the GPS
device records the location of the defendant, allowing the company to determine if the
defendant was abiding by the curfew and geographical confines required by the judge. 76 The
Orleans Parish Criminal District and Magistrate Courts have no formal contracts with private pretrial services companies or ankle monitoring companies. 77 An ankle monitor will usually cost a
criminal defendant at least $10 a day with an installation fee of $100 or more.78 The defendant will
often be required by the Orleans Parish Criminal District Court to wear the ankle monitor for several
months, a hardship for a criminal defendant population that is 85% indigent. 79 Although some
theorists have opined that ankle monitoring is not a proper mechanism for criminal cases 80 or does

Id. at 78.
In re Johnson, 1 So.3d 425, 425 (2009).
73 Id. at 433.
74 Id. at 437.
75 CWN did not research the Magistrate Court Commissioner’s ankle monitoring practices because Orleans Parish
Magistrate Commissioners are not elected and thus do not receive campaign contributions.
76 Alt. to Incarceration, A2i Program, http://www.a2inola.com/about-a2i.html (last visited Apr. 27, 2019); SCRAM Systems,
SCRAM GPS®, https://www.scramsystems.com/products/scram-gps/ (last visited Apr. 27, 2019).
77 Interview with Robert Kazik, Judicial Adm’r, Criminal Dist. Ct. (Mar. 22, 2018).
78 Letter from Christian Helmke to Danny Engleberg, Chief of Trials, Orleans Public Defenders (Jun. 25, 2018).
79 Email from Lindsey Hortenstine, Dir. of Commc’n and Development, Orleans Public Defenders, to Simone Levine,
Executive Dir., Ct. Watch NOLA & Veronica Bard, Deputy Dir., Ct. Watch NOLA (4/12/19, 09:54 CST) (on file with author).
80 Michelle Alexander, The Newest Jim Crow: Recent Criminal Justice Reforms Contain the Seeds of A Frightening System
Of “E-carceration,” N.Y. Times, Nov. 8, 2018 (“Many reformers rightly point out that an ankle bracelet is preferable to a
prison cell. Yet I find it difficult to call this progress. As I See it, digital prisons are to mass incarceration what Jim Crow was
to slavery”).
71
72

17

 not sufficiently protect public safety,81 other theorists believe that ankle monitoring is a viable jail
alternative. 82 CWN does not examine this issue, especially since it involves an individualized
assessment to be made on a case-by-case basis; CWN examines aggregate trends and not
individual cases. Instead, CWN has examined the conflict of interest that arises when a judge
receives campaign financing from an ankle monitoring company executive, the judge requires
defendants to wear an ankle monitor, and then the Judge “steers” the defendant to use the ankle
monitoring company from which the judge has received campaign financing.
There were at least two different companies that offered ankle monitoring services in 2018, two
different private for-profit companies (ETOH and A2i) 83 and one public agency, the Home
Incarceration Program through the Gretna Police Department. 84 In examining campaign
contributions from 2008-2018, CWN found that five Criminal District Court judges received
campaign contributions from the executives that run ETOH Monitoring. The Executives that run
ETOH monitoring provided judges with campaign contributions in their personal capacity or
through the executive’s law firms. The executives of the A2i company were not found to have
made reported campaign contributions from 2008-2018.85 CWN examined all ankle monitoring
cases of judges who received campaign contributions given to them by ankle monitoring
executives, in order to ensure the judge was not steering a defendant to the specific company
that provided the judge with the campaign contribution or loan. For the purpose of being
objective in its investigation and transparent with the public about the CWN’s investigation
process, CWN listed all judges who received campaign contributions from ankle monitoring
executives regardless of whether CWN found the judge had any ankle monitoring cases or not,
This report does not suggest it is unethical for judges to receive campaign contributions from ankle
monitoring executives if judges do not steer defendants to use the specific ankle monitoring
company that contributed or provided a loan to that judge. In some circumstances judges may
not even know the identity of a campaign donor who has contributed to their campaign; this may
be true for example where a Judge received a single contribution from a campaign donor.86
CWN examined over 80 criminal court case files, reviewed over 60 transcripts, and spoke to over
70 criminal justice attorneys (both prosecutors and defense) and various court staff in its review of
Jack Kartson & Darrell West, Decades Later, Electronic Monitoring of Offenders is Still Prone to Failure, Brookings Inst.,
Sept. 21, 2017, available at https://www.brookings.edu/blog/techtank/2017/09/21/decades-later-electronic-monitoringof-offenders-is-still-prone-to-failure/.
82 Jesse Kelley, Active Electronic Monitoring a Viable Alternative to pre-trial Incarceration, The Hill, Jun. 18, 2018, available
at https://thehill.com/opinion/criminal-justice/392857-active-electronic-monitoring-a-viable-alternative-to-pre-trial.
83CWN did not find any evidence that other companies provided defendants with ankle monitors in conjunction with a
judicial requirement. Bail bond companies may require individual defendants to wear ankle monitors for the purposes of
tracking those defendants for whom the bail bond company paid bonds. However, where such ankle monitoring activities
were not requested by a judge, CWN did not track campaign contributions from these businesses. CWN received an
affidavit from Blair Bonds, one of the larger bond companies, establishing this company did not provide ankle monitoring
services to a defendant in conjunction with a judicial order in 2018.
84 The Home Incarceration Program is government-funded and works within the Gretna Police Department. Orleans
Parish Criminal District Court can specifically request defendants are a part of this program or the defendant may be
required to undergo ankle monitoring with the Home Incarceration Program as part of their probation. Telephone
Interview between Yael Acker-Krzywicki and Officer Melinda Reed (May 2, 2019).
85 While it is possible that associates, family members (with a different last name), or acquaintances of ankle monitoring
company executives contributed to Orleans Parish Criminal Court Judges or the Magistrate, CWN was unable to determine
this.
86 Telephone Interview with Tracey Flemings-Davillier, Judge, Orleans Parish Crim. Dist. Ct. (May 10, 2019).
81

18

 Orleans Parish Criminal District Court’s use of ankle monitoring companies. CWN found a total of
94 cases where defendants were required to wear ankle monitors in 2018. This represents the
minimum number of 2018 ankle monitoring cases with the maximum number likely being much
larger. 87 CWN examined only 2018 ankle monitoring cases, since CWN’s annual report only
includes 2018 observations. Out of the five judges, Judges White, Flemings-Davillier, Bonin,
Derbigny, and Zibilich who received campaign contributions from ankle monitoring executives or
their companies, only Judges White, Bonin, and Derbigny were found to have ordered ankle
monitoring of defendants in 2018. However, Judge Bonin was the only judge found to have
required a defendant use an ankle monitor and then steered the defendant to pay a specific
ankle monitoring company (over other companies) from which the judge had received
campaign contributions or a loan. CWN found no 2018 ankle monitoring cases in front of Judges
Flemings-Davillier or Zibilich. CWN found that Judges White and Derbigny did not steer any criminal
defendant to a particular ankle monitoring company. In Judge White’s only 2018 ankle monitoring
case, she stated in open court, “I don’t know who does monitoring, other than, I don’t even know
the name of them.”88 This report does not suggest it is unethical for judges to receive campaign
contributions from ankle monitoring executives if judges did not steer defendants to use the ankle
monitoring company that contributed or provided a loan to the judge. In some circumstances,
judges may not even know the identity of a campaign donor who has contributed to their
campaign. This may especially be true where a Judge received a single contribution from a
campaign donor.89
The only ankle monitoring company executives providing campaign contributions or loans to any
Criminal District Court Judges or the Magistrate Judge according to campaign finance records
were those executives from ETOH Monitoring, Inc. 90 Table 1, below, indicates the judges who
received a campaign contribution(s) from ankle monitoring executives and the number of cases
(if any) in which the Judges required the defendant to use ankle monitors. Campaign
contributions in Table 1 are listed by the ankle monitoring company run by the executive,
regardless of whether the campaign contribution was provided by the ankle monitoring
executives in their personal capacity, the ankle monitoring company itself, or another company
run by the ankle monitoring executive. Table 1 also indicates whether CWN found evidence that
a judge steered a defendant to a specific ankle monitoring company.

These 86 cases represent the minimum umber of ankle monitoring cases in 2018. Orleans Parish Criminal District court
does not collect or aggregate this information, and ankle monitoring companies did not provide data to CWN upon
request.
88 Court Transcript transcribed by Stenographer Marlene Rodriguez, Criminal District Court Section A, Case Number
535060 (September 28,2018).
89 Telephone Interview between Simone Levine, Veronica Bard and Judge Flemings-Davillier (May 10, 2019).
90 These 86 cases represent the minimum number of ankle monitoring cases in 2018. Orleans Parish Criminal District court
does not collect or aggregate this information, and ankle monitoring companies did not provide data to CWN upon
request.
87

19

 Table 1: Judges who Received Campaign Contributions from Ankle Monitoring Companies

Judge

Required
an Ankle
Monitor for
a
Defendant
in 2018

Ankle Monitoring
Executive’s
Campaign
Contribution
between 20082018

Ankle
Monitoring
Executive’s
Campaign
Loan
between
2008-2018

Steered Defendants to
a Specific Company in
2018

White

1

$900 (ETOH)91

$0

No

FlemingsDavillier

None found

$0

No ankle monitoring
cases found

Bonin

23

$1,00094

Yes: ETOH

(5x) 2016 ETOH
(2x) 2012 ETOH
(1x) 2008 ETOH

$0

No

(1x) 2014 ETOH
(1x) 2013 ETOH
(1x) 2012 ETOH
(1x) 2008 ETOH

$0

No ankle monitoring
cases found

(1x) 2013 ETOH

Derbigny

7

Zibilich

None found

$250 (ETOH)92

$8,150 (ETOH)93

$1,300

(ETOH)95

$250 (ETOH)96

Dates of
Campaign
Contributions &
Loan between
2008-2018
(1x) 2016 ETOH
(1x) 2014 ETOH
(1x) 2014 ETOH

Judge Bonin received both a campaign contribution and a campaign loan from ETOH
executives.97 Judge Bonin received a $1,000 campaign loan from ETOH executives in his successful
2016 election that made him a sitting judge in Criminal District Court Section D. 98 Looking back for

La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 60205 for Laurie White (10/11/16); La. Ethics Admin. Program, La.
Campaign Fin. Rep. No. 59473 for Laurie White (7/11/16).
92 La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 60205 for Tracey Flemings-Davillier (10/11/16).
93La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 61852 for Paul Bonin (1/19/17); La. Ethics Admin. Program, La.
Campaign Fin. Rep. No. 60688 for Paul Bonin (11/4/16); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 35430 for
Paul Bonin (2/15/13); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 32109 for Paul Bonin (8/8/12); La. Ethics Admin.
Program, La. Campaign Fin. Rep. No. 804529 for Paul Bonin (10/4/08).
94 La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 59725 for Paul Bonin (8/10/16).
95 La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 47056 for Darryl Derbigny (2/9/15); La. Ethics Admin. Program, La.
Campaign Fin. Rep. No. 39018 for Darryl Derbigny (2/10/14); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 37671
for Darryl Derbigny (11/21/13); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 806891 for Darryl Derbigny (10/27/08).
96 La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 38519 for Franz Zibilich (1/26/14).
97 La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 59725 for Paul Bonin (8/10/16). La. Ethics Admin. Program, La.
Campaign Fin. Rep. No. 61852 for Paul Bonin (1/19/17); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 60688 for
Paul Bonin (11/4/16); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 35430 for Paul Bonin (2/15/13); La. Ethics
Admin. Program, La. Campaign Fin. Rep. No. 32109 for Paul Bonin (8/8/12); La. Ethics Admin. Program, La. Campaign Fin.
Rep. No. 804529 for Paul Bonin (10/4/08).
98 La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 59725 for Paul Bonin (8/10/16).
91

20

 ten years, Judge Bonin has received at least $8,150 in campaign financing from ETOH executives
over the space of two political campaigns.99 The maximum campaign contribution a judge may
receive from an individual or a legal entity per political campaign is $2,500.100 Judge Bonin has
had two elections over the last ten years and ETOH’s two executives have contributed to Judge
Bonin’s campaign during that time. CWN examined only 2018 cases where Judge Bonin required
ankle monitoring, since CWN’s annual report includes only 2018 observations, but found numerous
cases not included in this report where ankle monitoring was required in 2017 and 2019, the only
other years Judge Bonin was sitting on the Criminal District Court bench. Judge Bonin was also
well-known when he was a traffic court judge from 1997-2008 for requiring those who attended
traffic court to use and pay for ankle monitors.101
In the 2018 cases where Judge Bonin required a defendant to pay for and use ankle monitoring,
the Judge made it a regular practice of recommending defendants use ETOH, informing defense
attorneys in open court that he would email them the details on how the defendant could sign
up for ankle monitoring services. The Judge made a regular practice of then emailing the defense
attorneys with the contact information for ETOH while copying ETOH executives on the same
email. On occasion, the judge would require court staff to provide the defendant or the
defendant’s family members with the contact information for ETOH. CWN has retained both the
emails as well as the contact papers the judge provided to defendants in steering defendants to
the ETOH monitoring company. When a defendant in front of Judge Bonin went with a different
ankle monitoring company, it was because the bail bond company that paid the defendant’s
bail also offered ankle monitoring services and/or the defendant disregarded the judge’s
suggestion. On one occasion, the defendant’s bail bond company met to convince the Judge
that it (as compared to ETOH) should be the ankle monitoring company. Figure 2 shows the ankle
monitoring companies used by defendants in Judge Bonin’s courtroom in all 2018 cases.

La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 61852 for Paul Bonin (1/19/17); La. Ethics Admin. Program, La.
Campaign Fin. Rep. No. 60688 for Paul Bonin (11/4/16); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 35430 for
Paul Bonin (2/15/13); La. Ethics Admin. Program, La. Campaign Fin. Rep. No. 32109 for Paul Bonin (8/8/12); La. Ethics Admin.
Program, La. Campaign Fin. Rep. No. 804529 for Paul Bonin (10/4/08).
100 La. Code Crim. Proc. Ann. R.S. 18:1505.2 H (1)(a).
101 Rhonda Nabonne, Traffic Ct. Judge Paul Bonin Seeking Seat on 4th Cir. Ct. of Appeals, Nola.com, May 20, 2008,
available at https://www.nola.com/news/2008/05/bonin_Seeking_appeals_judgeshi.html.
99

21

 Source: Orleans Parish Criminal District Court. n = 23.

On several occasions, Judge Bonin refused to release the defendants from jail until the family had
arranged for ETOH to set up ankle monitoring services, for example stating, “Reinstate the same
bond but not until he--he can’t be released from custody until the monitor has been placed on
him. I will have them place it over there. I will send you an email before the afternoon.” 102 On
several occasions, Judge Bonin refused to release criminal defendants, after they had been on
ankle monitors for months, from their ankle monitors solely because the defendants had not paid
ETOH all the remaining fees the defendant owed to ETOH, 103 requiring the clerk to write in the
minutes, “The court noted that the ankle monitor can be removed once the defendant has
fulfilled his financial obligations owed to the ankle monitor company.” 104 On other occasions,
Judge Bonin threatened to put defendants back in jail and set bond for their failure to pay their
remaining debts to the private ankle monitoring company. 105 Figure 3 shows the different ways
Judge Bonin steered criminal defendants to the ETOH ankle monitoring company.

Court Transcript transcribed by Stenographer Eve Kazik, Criminal District Court Section D., Case No. 542162, (Oct. 24,
2012).
103 Court Transcript transcribed by Stenographer Eve Kazik, Criminal District Court Section D., Case No. 538515, (May 24,
2018).
104 Orleans
Parish Sheriff’s Office Docket Master, Case No. 538515 (May 24, 2018), available at
http://www.opcso.org/dcktmstr/666666.php?&docase=538515.
105 E-mail from Confidential Source to Simone Levine, Executive Dir., Ct. Watch NOLA (Apr 22, 17:12 CST).
102

22

 Figure 3

Figure 4

Source: Orleans Parish Criminal District Court. n = 23

Source: Orleans Parish Criminal District Court. n = 23

The public should not be left to wonder if an ankle monitor was required by a judge because it
comported with public safety or if the ankle monitor was required by the judge because it
financially benefited a judge’s campaign contributor. Figure 4, above, shows how many times the
prosecution objected to Judge Bonin’s requirement that the defendant use an ankle monitor.
Government contracts should go to the companies that charge the lowest prices and/or do the
best work, not the ones that have connections to government officials. 106 Judges should not
specify the company that a criminal defendant is to use where that same company has provided
the judge with either a campaign contribution or a campaign loan. This is especially important
when an often-indigent criminal defendant must pay that company to be released from jail, and
the defendant’s liberty and property (money) is at stake. Instead, if the judge requires a criminal
defendant to use a company to show court compliance, the judge should inform the criminal
defendant that they have a choice between companies or simply remain silent on the issue.
Additionally, the judge should disclose orally or in writing any conflicts, particularly those involving
campaign loans and campaign contributions, that might plausibly be construed as bearing on
the judge’s impartiality. One judge’s disclosure would increase the reputational and professional
costs of other judges who fail to disclose pertinent information that later publicly emerges.107

Pub. Citizen, Pay-to-Play Pols., www.citizen.org/our-work/government-reform/money-politics/pay-play-politics (last
visited May 2, 2019).
107 James Sample et al., Fair Cts.: Setting Recusal Standards, Brennan Ctr. for Just., at 9 (2008), available at
http://www.brennancenter.org/sites/default/files/legacy/Democracy/Recusal%20Paper_FINAL.pdf.
106

23

 n = 23.

RECOMMENDATION 1: Judges should avoid conflicts of interest that reflect adversely on the
judge’s impartiality, interfere with the proper performance of the judge’s duties, or exploit the
judge’s judicial position. Judges should not accept campaign funds and loans that might
reasonably appear as influencing the judge’s official conduct or undermining the judge’s
independence, integrity, or impartiality. Where it is impossible for a judge to avoid a conflict of
interest, it is incumbent upon the judge to disclose the conflict of interest to the relevant parties to
avoid the impression of impropriety.
B. ONE-PARTY SIDEBAR S
There are relatively few explicit and narrow rules that judges are required to abide by in Louisiana.
One of the narrow prohibitions listed in the Code of Judicial Conduct is the prohibition against ex
parte contact, where one party speaks to the judge about the merits of a case without opposing
counsel present.
The Louisiana Code of Judicial Conduct Canon 3A (6) states in part: “Except as permitted by law,
a judge shall not permit private or ex parte interviews, arguments or communications designed to
influence his or her judicial action in any case, either civil or criminal.” 108
Among the many dangers of ex parte contact is the danger that the opposing but absent party
cannot refute an untrue claim made by the party speaking to the judge, since the opposing party
has been excluded from the conversation. 109 Without opposing counsel present, the attorney
engaging in the ex parte contact has the ability to exert influence without opposition. This
influence may be in addition to any special relationship the attorney and judge enjoy, such as a
long-standing friendship or a campaign contribution to the judicial campaign. 110 Ex parte
La. Code Jud. Con. § 3(A)(6).
Jack Weiss, It Depends on the Meaning of “Ex Parte,” 29 Litigation 27 (2003) (“According to Professor Charles Wolfram,
‘[t]he purpose of the prohibition . . . is to prevent the communicating side from gaining an unfair advantage in the
litigation: The advantage is created, of course, because the communication may influence the judge on an important
decision without the absent party being able to rebut or qualify the communication as it is being made and with
knowledge of the exact form in which it is being made’”).
110 Randall T. Shepard, Judicial Professionalism and the Relations Between Judges and Lawyers, 14 Notre Dame J.L. Ethics
& Pub. Pol'y 223 (2000).
108
109

24

 conduct has consistently been found by the Louisiana Supreme Court to violate the Louisiana
Code of Judicial Conduct.111 The Louisiana Supreme Court has specifically stated, “The handling
of judicial matters ‘off-the-record’ gives at least the appearance of impropriety and lessens the
public's confidence in the integrity and impartiality of the judiciary.”112 One-party sidebars, where
ex parte contact occurs, are initiated by both the defense and the prosecution in Orleans Parish
Criminal District Court.
From 2016 until present, CWN has tracked one-party sidebars, the discussion between the judge
and either the defense or the prosecution, without the opposing party present, conducted at the
bench or in judicial chambers, and outside the earshot of the public. Since both ex parte contact
and one-party sidebars are often not publicly conducted, CWN volunteers are unable to hear
enough of the conversation to determine what is ex parte contact (a discussion about the merits
of the case) as compared to a one-party sidebar (where a judge and defense attorney could be
talking about their next golf game, but are not referring to the criminal case). The former is
unethical, and the latter, while not unethical under the Louisiana Judicial Code of Conduct,
causes outsiders--crime victims, defendants, bystanders, and most of the general public--to find
the system frustrating, insular, and unconcerned with proper justice. Input from some judges
indicate that one-party sidebars may pertain to personal matters with the judge, a sick spouse, or
inquire about the judge’s health. CWN would recommend that a judge publicly appear as
transparent as possible by reserving personal well-wishing to a time when the judge is not on the
bench. Judges may also consider announcing to the public before a one-party sidebar occurs,
that the facts of a case are in fact not being discussed or that the matter being discussed is purely
administrative.
Some attorneys or judges have questioned why one-party sidebars are a problem. Where national
polls show that 62% of those surveyed believe that “[t]here are two systems of justice – one for the
rich and powerful and one for everyone else.” 113 it is important to stop any avenue where backroom deals are made and those that are powerful have access to judges without opposing parties
present. It is hard to distinguish for an outsider between harmless conversations a judge may have
with a long-time friend, and those conversations a judge may have with a major political
operative either from the criminal defense side or the prosecution side. And it is exactly for this
reason, that the Louisiana Supreme Court and the Louisiana Code of Judicial Conduct have
forbidden ex parte contact. Reducing one-party sidebars is one of the few ways we have to
reduce the backroom deals that allow there to be a separate justice system for the powerful and
a separate justice system for the poor and powerless.
In Figure 6 below, CWN found that, on average, most judges are observed to have a 1-party
sidebar in over half of observations of their courtrooms. CWN found that Judges Willard, LandrumJohnson, Williams/the Ad Hoc Judge in Section G, Buras, and Herman decreased their frequency
of 1-party sidebars between 2017 and 2018 and applauds such judges for doing so.
In re Elloie at 25; In re Free, 199 So.3d 571 (La. 2016).
Id.
113 Greenberg, Quinlan, Rosner Research Inc. & American Viewpoint, Justice at Stake Frequency Questionnaire, at 4;
Justice at Stake Campaign, March 2004 Survey Highlights: Americans Speak Out on Judicial Elections (2004) page 4-10,
faircourts.org/ftles/ZogbyPollFactSheetpdf (accessed Mar. 26, 2019, info. no longer accessible online).
111
112

25

 n = 397 observations (2017), 308 observations (2018).

RECOMMENDATION 2: Where a one-party sidebar is absolutely necessary for administrative
reasons, judges should announce to the public that the facts of a case are not being discussed or
that the matter being discussed is purely administrative. Judges should attempt to discontinue the
practice of one-party sidebars, since it gives a public impression that undermines confidence in
the judge’s independence, integrity, and impartiality.
C. INTOLERANCE & PRE JUDICE
26

 The Code of Judicial Conduct broadly prohibits a judge and their staff from showing prejudice
and intolerance. Canon 3 of the Code of Judicial Conduct states in part, “A judge shall perform
judicial duties without bias or prejudice.114 A judge shall not, in the performance of judicial duties,
by words or conduct manifest bias or prejudice, and shall not permit staff, court officials or others
subject to the judge's direction and control to do so.” 115 Judges are also required to ensure that
lawyers appearing in front of the court similarly desist from prejudice and intolerance. Canon 3(5)
states, “A judge shall require lawyers in proceedings before the judge to refrain from manifesting,
by words or conduct, bias or prejudice against parties, witnesses, counsel or others.”116

I've seen how this Judge has previously treated male NOPD or LSP
officers who testify in his courtroom. They are treated with respect,
and usually given the benefit of the doubt when they mix up their
testimony or make a mistake. However, the black female sex crime
detective, testifying for a rape preliminary hearing involving 4
suspects, was continuously interrupted by not only the Judge but the
private attorneys cross examining her . . . When a private attorney
asked her a question and she replied, “I don't think I understand what
you're saying,” he sharply replied, “I know you don't understand!”
-Courtwatcher comment from Magistrate Court

Prohibiting public officials and court actors from manifesting bias and discrimination is essential for
many reasons. Permitting a public official to openly engage in discrimination enables the public
to believe that discriminatory attitudes, statements, and actions are acceptable, normal, and thus
can be emulated and even escalated. 117 Where our public officials’ actions and words are
discriminatory, studies have shown it can lead others to believe that discrimination in other
contexts or the even more extreme next step, bias-motivated violence, is acceptable behavior or
justified. Studies have also shown that it has become more socially acceptable for people to
express prejudicial or hateful views when they hear their political leaders espouse discriminatory
views.118 The FBI has recorded a rise in hate crimes over the last few years. According to the FBI, in
2016, the number of hate crime incidents increased 12% from its incident rate in 2014. 119
La. Code. Jud. Con. § 3.
La. Code. Jud. Con. § 3(A)(4).
116 La. Code. Jud. Con. § 3(A)(5).
117 Brian Levin & John David Reitzel, Cal. State University, San Bernadino Ctr. for the Study of Hate & Extremism, Report to
the Nation: Hate Crimes Rise in the U.S. Cities and Counties in Time of Division & Foreign Interference (May 2018),
https://csbs.csusb.edu/sites/csusb_csbs/files/2018%20Hate%20Final%20Report%205-14.pdf. See also Anti-Defamation
League, https://www.adl.org/education/resources/tools-and-strategies/pyramid-of-hate-en-espanol (last visited Mar. 9,
2019).
118 Id.
119 FBI Nat’l Press Office, FBI Releases 2017 Hate Crime Statistics, Nov. 13 2018, www.fbi.gov/news/pressrel/pressreleases/fbi-releases-2017-hate-crime-statistics.
114
115

27

 A defendant was ordered to jail and was visibly distraught pleading
with the judge even when forced physically to the back room of the
court. Later, it was brought up by clerks in the court that he might
have a mental disability and needed an evaluation. Before this, he was
verbally and physically assaulted (manhandled) out of the courtroom.
- Courtwatcher comment from Municipal Court

In 2017 (the most recent year for which the FBI has gathered statistics), that hate crime incident
rate increased 31% from its rate in 2014.120 Of the more than 7,100 hate crimes reported last year,
nearly three out of five were motivated by race and ethnicity.121 Religion and sexual orientation
were the other two primary motivators in the FBI index.122

Those appointed public defenders were also ordered to do weekly
community service ‘until they found employment’ as payment for
the public defender. When OPD asked why community service was
given to his client, judge was abrasive and defensive in response,
rude for the most part and dismissive of the defendant who was
getting a “free lawyer and giving nothing back to the community.
- Courtwatcher comment from Criminal District Court

In 2018, CWN asked its observers whether the CWN observer perceived “anyone was treated
inappropriately or differently based on gender, race, ethnicity, religion, age, disability status,
sexual orientation, economic status.” Below is the number of incidents of perceived
discrimination found in Criminal District Court, Magistrate, and Municipal Courts during 2018. The
responsible actors of the perceived bias were usually judges in Criminal District Court and
Magistrate Court (in 86% of observed occurrences). Targets of perceived bias were typically
defendants (in 79% of observed occurrences). Figure 7 below provides a snapshot of the
perceived discrimination found in the Orleans Parish criminal courtroom in 2018.

Id.
Id.
122 Id.
120
121

28

 n = 406 (Criminal District Court observations), 254 (Magistrate Court observations), 56 (Municipal Court observations).123

Judges should be attentive to the things they say and the actions they take in their official
capacity. Often a judge’s words or actions can create an impression that the public will continue
to share with neighbors and other community members after they leave court. When confronted
with their actions or words, a judge often responds that bias or prejudice was not their motivation
in making the specific statement or taking the action. However, if a CWN observer has perceived
an action or statement to be based on bias or prejudice, it is likely that other members of the
public will leave the courthouse with the same impression, even if it was not the judge’s intent.
RECOMMENDATION 3: Judges should refrain from any action or statement that could give the
impression of bias against a defendant or other individual in their courtroom based on gender,
race, ethnicity, religion, age, disability status, sexual orientation, or economic status. Judges have
the responsibility of ensuring that prejudice and bias is not tolerated by the lawyers and court staff
in the judge’s courtroom.
V. VICTIM RIGHTS
The victims’ rights movement, now decades old, has become more prominent and successful in
recent years. For example, in November 2018, voters in five states decided on ballot-initiated
victim-rights amendments. 124 The strength of the victim-rights movement is growing here in
Louisiana, as well. In 2018, thirty victims reached out to CWN to complain about their treatment in
Orleans Parish Criminal Courts, inquire about their rights, or request that CWN monitor their case.
These victims believe, as does CWN, that the activities and attitudes of all courtroom actors

“Other” refers to one incident of discrimination between incarcerated and non-incarcerated persons, and two
incidents for unknown reasons.
124 Jill
Lepore, The Rise of the Victims'-Rights Movement, The New Yorker, May 14, 2018, available at
www.newyorker.com/magazine/2018/05/21/the-rise-of-the-victims-rights-movement.
123

29

 transform when CWN volunteers monitor a criminal case; prosecutors, judges, defense attorneys,
and police all act differently when they know they are being watched.
A. VICTIMS IN M AGISTRATE COURT
In May 2016, CWN began monitoring Orleans Parish Magistrate Court, where pre-trial release and
bail are initially determined for all state felony cases. Magistrate Court is generally effective in
ensuring that pre-trial release or bail is determined within the first 48 hours of the defendant’s arrest.
Both probable cause and pre-trial release are determined by the Orleans Parish Magistrate Judge
or an Orleans Parish Commissioner, normally after hearing arguments from both the prosecution
and the defense.
In 2016, CWN commended the Orleans Parish Sheriff’s Office (OPSO) for granting access to the
public on all first appearances in Magistrate Court, including those held during the weekend and
at night.125 Members of the public were previously barred entrance to bail hearings at night and
on the weekend by an OPSO deputy sheriff.126 By pushing the OPSO to grant public access on
nights and weekends, CWN allowed victims to observe pre-trial release and bail/bond hearings
they had previously often been barred from attending.
Understandably, first appearances in Magistrate Court are important to crime victims, since it
relates to the release of the defendant, which is sometimes welcomed, but often is not.127 Victim
rights advocates often insist that victims have the right to attend court hearings and trial, that
“part of their recovery depends on their seeing—first hand, if possible—our system of justice at
work.”128
Since March 2018, assistant district attorneys did not appear for 14 out of 19 Magistrate Court
settings. This trend continued despite the full restoration of the District Attorney’s budget to its 2016
amount.129 That means there is no assistant district attorney making bail arguments, speaking on
the victim’s behalf, or speaking to victims in Magistrate Court in more than ⅔ of Magistrate Court
settings. While there is no explicit legal requirement a prosecutor be present at a pre-trial release
or bail hearing, 130 there are responsibilities prosecutors are unable to perform if they are not
present at the bail hearing.
For example, without a prosecutor present in Magistrate Court, the court cannot invoke a Gwen
Law hearing.131 A Gwen Law hearing allows a prosecutor to incarcerate a defendant without bail
Ken Daley, Sheriff Ensures Easier Pub. Access to Night, Weekend Mag. Ct., Ct. Watch NOLA Says, Times-Picayune, May
17, 2016, available at https://www.nola.com/crime/2016/05/sheriff_ensures_easier_public.html.
126 Id.
127 U.S. Dept. of Just., Victim Rts., Jul. 18, 2016, available at https://www.justice.gov/usao-edca/victim-witnessassistance/rights.
128 Jill Lepore, The Rise of the Victims'-Rts. Movement, New Yorker, May 14, 2018, available at
www.newyorker.com/magazine/2018/05/21/the-rise-of-the-victims-rights-movement.
129 Michael Stein, DA to Use Most of City Budget Bump for Prosecutors, Not Diversion Program, The Lens, Nov. 20, 2018,
available at https://thelensnola.org/2018/11/20/da-to-use-most-of-city-budget-bump-for-prosecutors-not-diversionprogram/.
130 La. Code Crim. Pro. § 230.2 (A).
131 La. Code Crim. Pro. § 313 (B) (“Upon motion of the prosecuting attorney, the judge or magistrate may order the
temporary detention of a person in custody who is charged with the commission of an offense, for a period of not more
125

30

 until a hearing within five days of the first appearance 132 in cases in which the defendant is
charged with domestic abuse battery, violation of protective orders, stalking, or any felony offense
involving the use or threatened use of force or a deadly weapon upon the defendant's family
member, household member, or dating partner.133

Victims have the right to engage in the criminal justice system. Toward this right, it is important
to have the district attorney present at the Magistrate Court level. Their goal should be to build
relationships based on trust with the victim community and their families.
-Tamara Jackson, Silence is Violence Executive Director

Often, victims do not have any contact with the District Attorney’s Office until they appear in
Magistrate Court. 134 Sometimes victims will have only spoken only to a police official if they
encountered one earlier at a crime scene or at an earlier investigation, if they have even spoken
to one at all.135 Crime victims often have pivotal information about the defendant’s likelihood of
returning to court and likelihood of committing new crimes upon pre-trial release. 136 However,
without a prosecutor in Magistrate Court to speak with, this pre-trial risk information, no matter its
value, is often not transmitted to the court. The purpose of bail under the Louisiana Code of
Criminal Procedure is to “ensure the presence of the defendant, as required, and the safety of
any other person and the community.” 137 One of the factors required to be considered by the
judge in determining pre-trial release is “the nature and seriousness of the danger to any other
person or the community that would be posed by the defendant's release.” 138 Without the
prosecutor in Magistrate Court, the victim has lost a pivotal opportunity to express whether the
defendant poses a danger to them or anyone else in the larger community.
RECOMMENDATION 4: The Orleans Parish District Attorney’s Office should regularly attend and take
part in all first appearance hearings in Magistrate Court. When crime victims have information that
relates to the defendant’s pre-trial release, the prosecutor should ensure that such information is
transmitted to the Magistrate or Commissioner who is determining pre-trial release.
B. UNTRE ATED CRIME V ICTIM TRAUM A

than five days, exclusive of weekends and legal holidays, pending the conducting of a contradictory bail hearing.
Following the contradictory hearing, upon proof by clear and convincing evidence either that there is a substantial risk
that the defendant might flee or that the defendant poses an imminent danger to any other person or the community,
the judge or magistrate may order the defendant held without bail pending trial” [emphasis added]).
132 This 5-day period is exclusive of weekends and legal holidays. La. Code Crim. Pro. § 313 (A)(2).
133 Id.
134 Telephone Interview with Tamara Jackson, Executive Dir., Silence is Violence (Apr. 28, 2019).
135 Id.
136 Int’l Ass’n of Chiefs of Police Victim Services Comm., Law Enforcement's Role in Supporting Victims' Needs Through pretrial Jus. Reform (June 2015), https://www.theiacp.org/sites/default/files/2018-08/SupportingVictimsThroughpretrialReform.pdf.
137 La. Code Crim. Proc. Ann. art. 316.
138 Id.

31

 Experts in the victim advocacy field have concluded that a more effective response to the trauma
of victims will reduce repeat victimization and future offending.139 Ensuring that victims receive
treatment enhances a victim’s respect for the rule of law.140 This is a simple concept but worthy of
repeating: crime victims will respect the system that respects them. 141
Nationally, violent crime is often highly concentrated in a small number of urban communities,
and in these communities where law enforcement is often not well trusted, residents are at high
risk of being victims as well as agents of violence. 142 Those who commit and perpetuate violent
crimes often inhabit the same neighborhoods as their victims.143 Additionally, law enforcement’s
selective targeting of areas with high (crime and) victimization elevates, just by the police
attention alone, the likelihood of detecting minor transgressions (e.g., vandalism, loitering), which
might go unnoticed in places with less of a police presence 144
Studies have shown that exposure to trauma and post-traumatic stress disorder may increase the
chances of both arrest and incarceration. 145 Crime victims with untreated trauma may show
aggressive, retaliatory behaviors and/or engage in illicit substance use, all leading to increased
rates of arrest.146 It has been well documented that young men incarcerated for violent felony
offenses have themselves often witnessed or been the victims of violent offenses. 147 However,
academic studies have found that the strongest correlation to the rate of arrest was not the
experience of trauma for a victim, but instead the chronic exposure to trauma.148
In New Orleans, a wide-scale study on trauma in the adult population has not been conducted,
but there has been such a study examining trauma in a younger generation population. The
Institute on Women and Ethnic Studies performed such a study between 2012 and 2015 on
participants between the ages of 10-16.149 The survey found that 54% of respondents experienced
the murder of someone close to them; 39.8% of respondents witnessed a shooting, stabbing, or
beating; 37.9% of respondents witnessed domestic violence; and 17.9% witnessed a murder.150 Not
Jeremy Travis, Summoning the Superheroes: Harnessing Sci. & Passion to Create a More Effective & Humane Response
to Crime: 25th Anniversary Keynote Address, in The Sentencing Project, To Build a Better Crim. Just. Sys.: 25 Experts Envision
the Next 25 Years of Reform, 5-13 (2012).
140 Id.
141 Id.
142 Id. at 10.
143 Mark Berg & Rolf Loeber, Examining the Neighborhood Context of the Violent Offending-Victimization Relationship: A
Prospective Investigation, 27 J. of Quantitative Criminology 427 (2011).
144 Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in N.Y. City, 28 Fordham Urb.
L.J. 457 (2000); Karen Parker et al., Cmty. Characteristics and Police Search Rates, in Race, Ethnicity, and Profiling: New
and Essential Readings 349–67 (2010); Lawrence Sherman, Police Crackdowns: Initial and Residual Deterrence, 12 Crime
and Just. 1 (1990).
145 Lena Jäggi et al., The Relationship Between Trauma, Arrest, & Incarceration Hist. Among Black Ams.: Findings from the
Nat’l Survey of Am. Life, 6 Society and Mental Health 187.
146 Id.
147 Id.
148 Id.
149 Inst. of Women & Ethnic Studs., Emotional Wellness & Exposure to Violence Data from New Orleans Youth Age 11-15
(2015), available at
static1.squarespace.com/static/5679a070c21b86984b62ab2c/t/568ad4f7df40f36749171d09/1451939063010/EWS-Report2015.pdf. N =1221, mean age = 12.89 years with 41% male, 58.1% female, and 87.3% of the sample identifying as African
American.
150 Id.
139

32

 surprisingly, survey participants reported high levels of anxiety related to safety and stability: 52.2%
worry about violence in their neighborhood; 14% of respondents reported feeling suicidal; 16.4%
worry about having enough food to eat or a place to live; and 29.5% worry about not being
loved. 151 Findings also indicate that exposures to violence and security-related worries are
associated with the mental health outcomes of survey participants.152
As documented in Jonathan Bullington and Richard Webster’s award winning Children of Central
City series, the Centers for Disease Control and Prevention estimates that the lifetime public cost
for a child exposed to violence, abuse, or neglect who does not receive adequate mental health
treatment is $210,012, taking into account future costs of the criminal justice system, healthcare,
and welfare, in addition to future losses of productivity.153 In January 2016-May 2017, 42 children
at Lawrence D. Crocker College Prep screened positive for lifetime PTSD. 154 Without adequate
treatment, the cost to society of these 42 children who did not receive adequate treatment is
estimated to be $8.8 million.155 This cost, of course, does not include the potential loss of human
life, of either the children or others that cannot be measured in dollars and cents.
CWN volunteers were asked to record the number of Magistrate Court cases in which the
defendant could also potentially be considered the victim of a crime. CWN volunteers were
trained to only justify their opinion based on statements made by the defendant, defense counsel,
prosecution or judge. Figure 8 below identifies these defendants in 26 cases, along with the
reasons why CWN volunteers perceived them to be potential victims. In 77% of cases, the
defendant may have been defending him/herself from another individual, or the defendant and
victim in the case may have been mutually responsible for the crime charged. In 15% of cases,
the defendant may have been arrested for trespassing or attempting to steal what was rightfully
the defendant’s property. Lastly, in 8% of cases labelled as “other case/unknown reason” in Figure
8, the defendant may have been the victim in another open case in Magistrate Court, or the CWN
volunteer did not indicate why the defendant was perceived to be a potential victim.

Id.
Id.
153 Xiangming Fang et al., Econ. Burden of Child Maltreatment in the U.S. & Implications for Prevention, 36 Child Abuse &
Neglect 156 (2012), available at https://www.sciencedirect.com/science/article/pii/S0145213411003140?via%3Dihub.
154 Richard Webster & Jonathan Bullington, Treating Trauma   The Children of Central City, Nola.com, June 14, 2018,
available at https://projects.nola.com/the-children-of-central-city/treating-trauma/; interview with Jonathan Bullington,
Investigative Rep., Nola.com (Apr. 25, 2019).
155 Id.
151
152

33

 n = 26.

In Louisiana, there was a previous prohibition against the Louisiana Crime Victim Reparation Board
providing resources to any victim (except for sex crime victims) who had been convicted of a
felony in the five years before becoming a victim or who is currently on probation or parole. 156 In
2018, thanks to the actions of the Family Justice Center, Silence is Violence, the Southern Poverty
Law Center, and CWN, among others, the Louisiana Crime Victim Reparation Board was
convinced to reduce that period for when a crime victim was convicted of a felony from five to
three years.157 According to the Crime Victim Reparations Chair, “Louisiana first started banning
payouts to people with criminal history in the mid-1990s.”158 Often, the crime victim who is the basis
of the exclusion is a formerly-convicted murder victim, the murder victim’s family is subsequently
denied resources for burial costs and mental health treatment to deal with the loss.159 A review
conducted by USA Today and the Marshall Project found that out of the 91 Louisiana victim claims
that were denied solely because of a criminal history from 2015 to 2017, 80% were black crime
victims or their families. The review by USA Today also found that most of those who applied for
resources from the Crime Victim Reparation Board who were excluded from receiving resources
because of a felony conviction were the family members of murder victims. 160 Louisiana House Bill
85, introduced by State representatives Billiot and Marino, would eliminate the prohibition against
providing resources to crime victims and their families who have been convicted of a crime or
who are currently on probation or parole.161 This legislative bill keeps discretion in the hands of the
Louisiana Crime Victim Reparation Board members to choose whom to allocate resources, but
eliminates the discriminatory prohibition denying resources to victims with a criminal conviction. 162
Alysia Santo, For Black Crime Victims with Crim. Recs., State Help is Hard to Come by, Marshall Project & Reveal from the
Ctr. for Investigative Reporting, U.S.A. Today, Sept. 13, 2018.
157 Id.
158 Id.
159 Id.
160 Id.
161 La. Stat. Ann. § 46:1809(E).
162 Id.
156

34

 RECOMMENDATION 5: State political leaders and the community at large should support Louisiana
House Bill 85 and eliminate the discriminatory prohibition against crime victims receiving crime
victim compensation when such victims have a criminal conviction, or are on probation or parole.
C. THE TRAUM ATIZED V ICTIM AND TESTIMONY IN COURT
Some crimes, such as possession of narcotics or possession of a firearm by a felon, are considered
by some to be victimless or non-victim crimes.163 These crimes do not have a specific victim, but
are considered by some to be against the state or society at large.164 In 2018, 24% of NOPD arrests
were considered to be for ‘victimless crime,’ with 73% of NOPD arrests considered to be “victim
crimes.”

Source: New Orleans Police Department. n = 18,278 (victims reported), 11,317 (arrested subjects reported).

Crime victims have certain rights under Louisiana Law. These rights include reasonable notice to
be present and heard during all critical stages of pre-conviction and post-conviction
proceedings.165 However, there are several factors that could impede a victim from appearing
for a case. These factors include but are not limited to: whether the prosecutor or clerk of court
gave the victim sufficient notice to appear; the level of fear or discomfort the victim has with
appearing in court; witness intimidation caused by those inside court or in the victim’s community;
and the emotional stress and trauma in facing the victim’s aggressor. 166 As one expert has stated,
For victims of violent crime, who may suffer from psychological trauma as the result
of their victimization, involvement in the justice system may compound the original
injury. The mental health needs of crime victims are often diametrically opposed
to the requirements of legal proceedings. Victims need social acknowledgment
and support; the court requires them to endure a public challenge to their
credibility. Victims need to establish a sense of power and control over their lives;
Brennan Hughes, Strictly Taboo: Cultural Anthropology's Insights into Mass Incarceration & Victimless Crime, 41 New Eng.
J. on Crim. & Civ. Confinement 49, 54 (2014); Michal Buchhandler-Raphael, Drugs, Dignity & Danger: Human Dignity as a
Constitutional Constraint to Limit Overcriminalization, 80 Tenn. L. Rev. 335 (2012).
164 Id.
165 La. Stat. Ann. § 46:1844.
166 Judith Lewis Herman, The Mental Health of Crime Victims: Impact of Legal Intervention, 16 Journal of Traumatic Stress
159-166.
163

35

 the court requires them to submit to a complex set of rules and procedures that
they may not understand, and over which they have no control. Victims need an
opportunity to tell their stories in their own way, in a setting of their choice; the court
requires them to respond to a set of yes-or-no questions that break down any
personal attempt to construct a coherent and meaningful narrative. Victims often
need to control or limit their exposure to specific reminders of the trauma; the court
requires them to relive the experience by directly confronting the perpetrator
[emphasis added].167
When a crime victim is able to participate in their criminal case, participation can empower the
victim. 168 When a victim is offered information about their case, a participatory role in the
development of their case, fair and respectful treatment, emotional healing, apologies, and
restitution, a victim can begin the process of healing. 169 Victims see the law as more fair and
legitimate when they have some control over the process and feel that they have been heard. 170
And yet, studies on a national level involving crimes such as rape show that most rape crimes go
unreported.171The majority of victims do not report the crime in the first place, and others decide
not to proceed with criminal charges after reporting. 172 And mental health workers who serve
victims commonly report the impression that their patients’ traumatic symptoms are worsened by
negative contacts with the justice system.173
In Louisiana, crime victims and witnesses who are under 17 years of age or who are
developmentally disabled may be allowed by a judge to testify in another room outside of the
court and be simultaneously televised by closed-circuit television to the court and jury. 174 The
judge, the prosecution, the defense attorney, and a support person for the victim or witness may
be present when the victim or witness testifies via closed-circuit television, but the defendant will
not be present.175 The child or mentally-disabled victim or witness is allowed to testify via closedcircuit television if expert testimony shows the victim or witness would likely suffer serious emotional
distress and, without such simultaneous televised testimony, the protected person could not
reasonably communicate their testimony to the court or jury. 176 A victim or witness would not be
Judith Lewis Herman, The Mental Health of Crime Victims: Impact of Legal Intervention, 16 Journal of Traumatic Stress
159 (2003).
168 Jo-Anne Wemmers, Where Do They Belong? Giving Victims a Place in the Criminal Justice Process, 20 Crim. L. Forum,
395 (2009), (last visited Apr. 29, 2019), available at https://doi.org/10.1007/s10609-009-9107-z (By providing victims with the
recognition that they Seek and giving them, through legal counsel, a clear understanding of how the criminal justice
system works, victim participation in the criminal justice process can help empower victims and combat the sense of
powerlessness that many victims feel during criminal proceedings).
167

Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. Pa. L. Rev. 959 (2009). Faculty
Scholarship at Penn Law. 244. https://scholarship.law.upenn.edu/faculty_scholarship/244.
170 Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911 (2006).
171 Id. at 153; National Sexual Violence Resource Center, Info & Stats For Journalists,
https://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_media-packet_statistics-about-sexualviolence_0.pdf (last visited April 27, 2019). (Rape is the most under-reported crime; 63% of sexual assaults are not
reported to police (o). Only 12% of child sexual abuse is reported to the authorities (g).)
172Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 159-160 (2006).
173 Id.
174La. Stat. Ann. § 15:283(A)(1)(2).
175 La. Stat. Ann. § 15:283(B). (The defendant can consult with his attorney during the testimony of the victim or witness).
176 Id.
169

36

 able to “reasonably communicate their testimony to the court or jury,” for example, where, due
to fear, the victim literally cannot get their words out while on the stand.177
Additionally, adult witnesses or victims who are developmentally disabled or dependent upon a
caretaker 178 and children who are under 17 years old may be interviewed via pre-recorded,
videotaped interviews outside the presence of the defendant or the defense counsel. 179 Such prerecorded, videotaped evidence may be introduced without the witness or victim appearing in
court when the victim is available to testify at the hearing or trial if called. 180

I am still haunted by the disgrace of a “trial” and the injustice of my child being forbidden to
share her truth without the intimidation of her perpetrator and 10 others staring at her. My main
concern is that after a hearing was had, the judge refused to decide if my daughter could testify
via closed circuit tv. It was imperative per the child expert's testimony that my child was free
from fear and that she was unable to share her testimony while facing her attacker. The expert
also shared a heart-breaking play scenario in which my daughter used a snake figurine that she
identified as her father and put it in a cage and then built a fence between her, the judge, and
the assistant district attorney. The assistant district attorney had previously told my daughter
that the assistant district attorney may be asking her questions in front of a judge and possibly her
father, about what she said happened in private during the overnight visitation time spent with
her father. My daughter became very upset at this thought and yelled "no, throw him out the room
and lock the door." However, the judge was concerned with logistics as to how a closed circuit tv
would work. The defense counsel agreed to allow her to testify via closed circuit tv without her
father present yet changed his mind last minute and we had to go back on our word to my
daughter. I could see her anxiety grow, as my brave six-year-old still wanted her voice to be heard
and understood the importance that she tell her truth to remain safe. When faced with her
attacker, she had undeniable fear. She was upset and shut down during his presence, answering no
and I don’t remember and verbally sharing she was nervous and scared in his presence.
- Anonymous Mother of a Child Victim

CWN volunteers tracked the number of times a fragile witness/victim either testified or was asked
to testify in criminal court. CWN volunteers also tracked how often such fragile witnesses were
offered a confidential space within which to testify. Fragile witnesses/victims were defined for
CWN volunteers as “child witnesses, witnesses with mental disabilities, or otherwise fragile or
delicate situations.” A confidential space was defined as “something other than the public
courtroom.” Out of a total of 7 fragile witness/victim observations, none indicated that the Judge

Maryland v. Craig, 497 U.S. 836, 842 (1990).
Rev Stat § 15:1503 (This includes any person who is “eighteen years of age or older, or an emancipated minor who,
due to a physical, mental, or developmental disability or the infirmities of aging, is unable to manage his own resources,
carry out the activities of daily living, or protect himself from abuse, neglect, or exploitation) (3) and (who cannot physically
or mentally protect themselves and who are harmed or threatened with harm through action or inaction by themselves
or by the individuals responsible for their care or by other parties)(A) LA Rev Stat § 15:1502 (2017).
179 LA Rev Stat § 15:440.2 (2017).
180 Id.
177

178LA

37

 offered a confidential space in which the witness could testify. Fragile witnesses observed by CWN
volunteers included three victims of non-sexual offenses, two survivors of sex crimes, and two
witnesses with mental or emotional disabilities.

n = 7.

The United States Supreme Court (U.S. Supreme Court) took up the issue of victims and witnesses
testifying by closed-circuit television in Maryland v. Craig,181 finding that the witness or victim may
testify outside of the physical proximity of the defendant when: (1) the denial of the face-to-face
confrontation is “necessary to further an important public policy,” and (2), the “reliability of the
testimony is otherwise assured.”182The court must also find that the witness or victim is traumatized
and not just showing “mere nervousness or excitement or some reluctance to testify” and that
such trauma was caused not by the idea of the courtroom generally, but specifically by the
presence of the defendant.183

He tried to kill me once before so how could I show my face
in court against him? I would end up dead for sure.

None of the 7 fragile witnesses
was offered a confidential
space by the Court.

-Anonymous Orleans Parish Crime Victim
While the Craig case specifically involved a child witness, there is nothing in the U.S. Supreme
Court decision that limits the ability of an equally-traumatized adult victim from being able to
testify via closed-circuit television if the U.S. Supreme Court’s requirements of an important public

Maryland v. Craig, 497 U.S. at 855 (1990).
Id.
183 Id.
181
182

38

 policy and the failure to produce reliable testimony are met.184 Where the U.S. Supreme Court has
not ruled on an issue, it is up to different state courts and different state legislatures, like those in
Louisiana, to decide the issue in their own jurisdiction. For example, the highest court in New York
State found, “[n]owhere does Craig suggest that the decision is limited to child witnesses and . . .
the adult sexual assault victim is able to use a one-way CCTV to further the important interest of
the physical and psychological well-being of the victim and in situations where the “defendant
would [have lost] his ability to re-cross examine the victim” if they could not continue their
testimony.185 Although the New York State case was appealed, the U.S. Supreme Court refused to
hear it, a sign many saw as allowing for adult witness’ remote testimony where it was necessary to
further the important public policy of shielding a traumatized witness. 186 Indiana,187 New Jersey,188
Oregon, 189 South Carolina, 190 and Wyoming, 191 have statutes allowing adult victims (outside of
those with mental impairment) in certain situations to testify via closed circuit television.

Victims are often conflicted about testifying in cases of domestic or sexual violence because of
their history with intimidation and threats toward themselves and their families by their
perpetrators. Especially mothers have to be concerned about the relationship with the fathers of
their children as so often perpetrators, even after convictions, often are granted visitation rights
by civil courts. These are complicated patterned crimes that often go on for years and any and all
protections should be made available to victims in order for them to participate with the criminal
justice system with maximum safety.
-Mary Claire Landry, Executive Director Family Justice Center

The Federal Court system in Louisiana (the Fifth Circuit) has allowed remote two-way video
testimony from an adult witness when the witness would suffer from “physical danger or suffering”
if they were required to testify in the courtroom in front of the defendant. 192 That being said, federal
courts offer only persuasive guidance to Louisiana State Courts on this issue; federal courts do not
have jurisdiction over the Orleans Criminal District Court on this issue.193 The Louisiana Supreme
Court has not yet ruled on whether traumatized (but not mentally-impaired) adults should be
Meg Garvin et al., Allowing Adult Sexual Assault Victims to Testify at Trial via Live Video Technology, National Crime
Victim Law Institute: Violence Against Women Bulletin, (2011). See also Natalie Montell, A New Test for Two-Way Video
Testimony: Bringing Maryland v. Craig into the Technological Era, 50 U. Louisville L. Rev. 361, 373, (2011-2012).
185 People v. Wrotten, 923 N.E.2d 1099, 1103 (N.Y. 2009).
186 Natalie Montell, A New Test for Two-Way Video Testimony: Bringing Maryland v. Craig into the Technological Era, 50 U.
Louisville L. Rev. 361, 373, (2011-2012).
187 Closed-Circuit Televisions Statutes § 35-37.4-6 (2012) https://ndaa.org/wp-content/uploads/CCTV-2012.pdf
188 N.J. Coalition Against Sexual Assault, Gov. Christie OKs Closed Circuit Television Testimony for Sexual Violence Survivors,
njcasa.org, https://njcasa.org/news/gov-christie-oks-closed-circuit-television-testimony/ (last visited May 5, 2019).
189 Closed-Circuit Televisions Statutes § 419C.025, 25 (2012).
190 Closed-Circuit Televisions Statutes § 16-3-1550, 83 (2012).
191 Closed-Circuit Televisions Statutes § WYO. R. CR. PROC. 26. 109 (2012).
192 Horn v. Quarterman, 508 F.3d 306 (5th Cir. 2007). (The court found that the two way video testimony of a witness who
was undergoing cancer treatment in another state was justified by the “state’s interest in protecting the witness—from
trauma in child sexual abuse cases or, as here, from physical danger or suffering.”) See also State v. Luckey, 212 So. 3d
1220 (La. App. 5th Cir. 2017), where the reviewing court found that the “State's interest in a slightly swifter resolution of this
case” is an insufficiently important public interest to justify allowing a non-victim informant to testify via two way video from
his jail cell.
193 Hamilton v. Regents of the U. of CA, 293 U.S. 245 (1934).
184

39

 allowed to testify remotely, by two-way video or closed-circuit television. Therefore, there is no
controlling court decision that prohibits New Orleans Criminal Courts or discourages the Louisiana
Legislature from allowing remote testimony of traumatized adult witnesses. 194
The same public policy that justifies a child witness’ or victims’ remote testimony can justify a
traumatized adult witness’ or victim’s remote testimony. As with child witnesses, adult witnesses
who are too traumatized to testify in front of the defendant, and thus testimony cannot be elicited
under cross examination, should be allowed to testify via closed-circuit television if expert
testimony justifies the practice. Adult victims should also be allowed to testify if they are considered
unavailable, either through mental illness, physical illness or trauma, as an exception to the
hearsay rule.195
RECOMMENDATION 6: The Louisiana State Legislature should consider amending Louisiana
Statutes § 15:283 to allow an adult victim or witness to testify via simultaneous televised testimony
(1) if expert testimony shows the victim or witness would likely suffer serious emotional distress, and
(2) without such simultaneous televised testimony, the victim or witness could not reasonably
communicate their testimony to the court or to the jury. Where possible, the Orleans Parish District
Attorney should consider making a motion requesting such a traumatized adult victim or witness
be able to testify via closed-circuit television if expert testimony establishes that trauma had such
a debilitating effect on the victim or witness and the reliability of the victim or witness’ testimony is
otherwise assured.
VI. BAIL, FINES AND FEES
A. THE RETURN ON INDICTMENT PROCESS
When an individual is arrested on a felony offense in Orleans Parish, they are brought to the
Orleans Parish Magistrate Court for a Magistrate or a Commissioner to determine whether
probable cause exists for their arrest.196 At the defendant’s first appearance in Magistrate Court,
the Magistrate or Commissioner decides whether to detain or release them. 197 Typically, the

There are cases in which the Louisiana Supreme Court or the 4th Circuit Louisiana State Court of Appeals has ruled
relating to child testimony and the Craig exception or La. R.S. 15:283 (State v. Collins 65 So.3d 271 (La. App. 4th Cir. 2011))
a juvenile witness was allowed to testify via closed-circuit tv where experts found that the witness’ live courtroom testimony
“would be extremely traumatic and stressful for him [and] would . . . likely . . . exacerbate what appeared to be preexisting symptoms of a post-traumatic stress disorder”; State v. Welch, 760 So.2d 317, 321 (La. 2000) the court found that
the defendant’s right to confrontation was violated where the court allowed a 14 year old witness to testify with a screen
without the state providing either expert testimony or anything more than “a generalized statement of possible trauma for
child witnesses). However, the Louisiana Supreme Court has not ruled on adult remote testimony. The only Louisiana Court
to have issued a decision that partially related to this issue is the Court of Appeals for the 3rd Circuit that found that La. R.S.
15:283, does not provide procedural safeguards to protect a 17 year old witness. State v. R., Jr., 533 So.2d 1071 (1988).
However, the Louisiana State Court of Appeals for the 3rd Circuit is not controlling on New Orleans Courts especially since
the case was never appealed to the Louisiana Supreme Court. State v. R Jr only related to La. R.S. 15:283 and not adult
remote witness testimony as a hearsay exception.
195 Meg Garvin et al., Allowing Adult Sexual Assault Victims to Testify at Trial via Live Video Technology, in Nat’l Crime
Victim Law Inst. Violence Against Women Bulletin, at 1(2011) available at https://law.lclark.edu/live/files/11775-allowingadult-sexual-assault-victims-to-testify.
196 La. Code Crim. Pro. § 232 (2016); La. Code Crim. Pro. § 230.2(A) (2009).
197 La. Stat. Ann. §1346(C); La. Stat. Ann. § 1346(D); La. Stat. Ann. § 1347.
194

40

 Magistrate or Commissioner determines the amount of bail required before release, and the
defendant is released only if they pay that amount and agrees to certain behavioral conditions
such as not getting rearrested, remaining drug free or staying away from a victim. 198 The
Magistrate or a Commissioner can also agree to release the defendant without requiring the
defendant pay cash bail or can release the defendant based on a requirement that the
defendant abide by certain non-financial conditions. The Magistrate or Commissioner will make
release determinations after hearing arguments from the defense and from the prosecution (if
they appear) and after receiving information from the New Orleans Court Intervention Services
Pre-trial Services Program. The Magistrate or Commissioner will also determine, based on the
defendant’s ability to pay, whether the defendant will be represented by a public defender or
will be required to hire a private attorney.199
Typically, felony cases that begin in Magistrate Court continue on to the Criminal District Court for
pre-trial hearings, and eventually, if a plea is not taken earlier, the case will continue on to trial
proceedings.200 A case in which a defendant has been charged with one or more felonies moves
to Criminal District Court after a bill of information or a return on indictment (via a grand jury) is
filed.201 In 2018, 2% of cases passed through Magistrate Court to Criminal District Court by way of
a return on indictment.202 The District Attorney is required to present evidence to a grand jury for
all capital cases in which a defendant faces the potential of the death penalty.203 However, the
district attorney can chose to bring whatever case they like to the grand jury. 204 If 9 of the 18 grand
jurors find that there is enough evidence to believe the defendant committed a felony, the grand
jury returns what is known as a “true bill.” 205 The true bill must be filed in open court, a process
referred to as the return on indictment.206

Definition of Bail: La. Code Crim. Pro. § 311; Behavioral Conditions: La. Code Crim. Pro. § 320.
La. Code Crim. Pro. § 230.1 (2011).
200 La. Stat. Ann. §1336(A); La. Stat. Ann. §1336(B).
201 La. Code Crim. Pro. § 498.
202 Response to Public Records Request from Cherie Guggenheim, Orleans Parish Dist. Att’y Public Records Officer, to
Veronica Bard, CWN Deputy Director (Feb. 4, 2019) (on file with CWN).
203 La. Code Crim. Pro. § 382.
204 Id.
205 La. Code Crim. Pro. § 383.
206 Id.
198
199

41

 Table 2: Bill of Information vs. Grand Jury Indictment Procedure
BILL OF INFORMATION
Magistrate Court
● Magistrate judge or
commissioner decides
whether to hold
defendant in jail or
release defendant on
bond. ➨

Prosecution
● The District Attorney’s
Office accepts the case
and prepares the bill of
information. ➨

Criminal District Court
● The Assistant District
Attorney files a bill of
information.

GRAND JURY INDICTMENT
Magistrate Court
● Magistrate judge or
commissioner decides
whether to hold
defendant in jail or
release defendant on
bond. ➨

Prosecution
● The Assistant District
Attorney presents the
State’s case to a
confidential grand jury.
● After deliberation, the
grand jury votes to
indict the defendant of
the alleged offenses. ➨

Criminal District Court
● The Assistant District
Attorney files a true bill
indictment at the return
on indictment and
requests that the Judge
set a bail amount.
● The Judge often does
not have the case file
before ruling on the bail
amount.
● Neither defendant nor
defense counsel are
notified or present.

At this return on indictment, the district attorney will typically make an oral request to increase the
bail at an amount greatly exceeding what was originally required of the defendant in Magistrate
Court. The judge can then decide to increase bail from the amount originally set at Magistrate
Court or keep the same bail conditions.
Alternatively, some defendants are not arrested before the grand jury convenes; instead the
grand jury deliberates over the evidence before the defendant is arrested and the defendant is
“charged at large” 207 for security or witness confidentiality reasons. When the defendant is
charged at large, the defendant will be arrested for the first time after the return on indictment,
appearing first in court at the Criminal District Court arraignment, and thus will not be seen in
Magistrate Court at all.208

207
208

La. Code Crim. Pro. § 496.
Id.

42

 Source: Orleans Parish District Attorney’s Office and Orleans Parish Sheriff’s Docket Master. N = 150.

Figure 10 above illustrates a timeline of an average defendant’s case where a true bill indictment
was filed in 2018 and a return on indictment occurs. “Magistrate Court Bail” indicates the bail
amount set by a Magistrate judge or commissioner if a defendant first appeared in Magistrate
Court and is not “charged at large.” The average bail amount set by the Magistrate Court was
$165,103. 209 When the true bill indictment was filed in Criminal District Court (the return on
indictment), the defendant’s bail amount increased by an average of $952,368 during the return
on indictment. The first bail amount set in Criminal District Court averaged $1,117,472. 210 Thereafter,
defendants’ bail amounts in Criminal District Court decreased by an average of $64,037,
ultimately averaging $1,053,435.

209
210

The lowest bail amount set by the Magistrate Court was $2,000 and the highest amount was $2,205,000.
The lowest bail amount set at the Return on Indictment was $5,000, and the highest bail amount was $12,000,000.

43

 Source: Orleans Parish District Attorney’s Office and Orleans Parish Sheriff’s Docket Master. n = 74.

Regardless of whether the defendant is arrested before or after the grand jury convenes, it has
traditionally been the practice of the District Attorney’s Office, for at least 10 years, to orally argue
for a bail increase without the defense attorney present, without the defendant present, and
without a written motion. 211 While it is a requirement for all bail applications to be made in a written
format, the prosecution is often allowed by the judge to make the bail increase application orally
in violation of Louisiana District Court Rule 15.2. 212 While there is some anecdotal evidence that
the district attorney’s office will give select defense attorneys notice of the date for the return on
indictment process,213 all defense attorneys with whom CWN spoke asserted that they did not
receive any notice that bail would be increased and therefore were not present at the return on
indictment. Out of the 86 defense attorneys who had 151 return on indictment cases, CWN spoke
to 64 defense attorneys who had 123 cases. No defense attorney with whom CWN spoke said that
they had been notified of the return on indictment bail hearing, no defense attorneys said they
were present at the return on indictment bail hearing, and two defense attorneys said they may
have been present at the return on indictment, but could not be sure.

Telephone Interview between Simone Levine and Defense Attorney Gary Wainright. (May 2, 2019); Telephone Interview
with Derwyn Bunton, Chief Dist. Defender, Orleans Pub. Defenders (Apr. 29, 2019).
212 Louisiana District Court Rule 15.2 states, “All motions, ex parte or otherwise, shall be filed with the clerk of court and
served on all opposing parties, except as otherwise provided by law.”
213 State v. Smothers, No. 54-1785 (La. App. 4th Cir. 6/27/18).
211

44

 Figure 13

Figure 14

n = 123.

n = 123.

After bail has been increased at the return on indictment proceeding, in the absence of the
defendant and the defense attorney, the defense attorney and the defendant usually become
aware that bail has been raised at the defendant’s arraignment (which is usually the next court
appearance). 214 Unlike the prosecution earlier, the defense will often be required to make a
written motion if the defense attorney wishes to reargue the bail amount. 215
Defendants who had already paid the bail set in Magistrate Court and were released pending
bail are arrested and put in handcuffs by an OPSO Deputy when they appear for their
arraignment, even though they may have been following all the conditions of the pre-trial release
agreement made earlier in Magistrate Court. 216 Being placed in handcuffs may come as a
complete surprise to a defendant who has been released pending bail since they had no notice
bail had been increased at the return on indictment. Alternatively, if a defendant has not been
able to pay their original bail set in Magistrate Court or the defendant is charged at large and
arrested only after the return on indictment process, then the defendant will be faced with bail
set after the indictment has been filed but without the presence of the defendant or defense
counsel.217
Of course, after bail has been increased without notice to the defense, a defense attorney may
file a motion to decrease bail. However, the defense attorney rarely is successful in decreasing
bail once the judge has increased the bail in the defendant’s and defense attorney’s absence.
Figure 15 shows that in 85% of 2018 indicted cases, the defendant’s bail stayed at the amount
where it was set during the return on indictment. Between the bail amount set by the Criminal
District Court during the return on indictment and the bail set at the defendant’s arraignment and
Telephone Interview with Derwyn Bunton, Chief Dist. Defender, Orleans Pub. Defenders (Apr. 29, 2019).
Id.
216 Id.
217 State v. Smothers, No. 54-1785 (La. App. 4th Cir. 6/27/18).
214
215

45

 court dates thereafter, the defendant’s bail only decreased by an average of $64,037. Figure 15
below illustrates how often and by how much, bail amounts changed after the return on
indictment.

Source: Orleans Parish District Attorney’s Office and Orleans Parish Sheriff’s Docket Master. N = 150.

The Sixth Amendment of the U.S. Constitution, the Louisiana Constitution, and the Louisiana Code
of Criminal Procedure all guarantee the right to counsel.218 The U.S. Supreme Court has stated,
Attachment occurs when the government has used the judicial machinery to
signal a commitment to prosecute. . . Once attachment occurs, the accused is
entitled to the presence of appointed counsel during any “critical stage” of the
post-attachment proceedings; what makes a stage critical is what shows the need
for counsel's presence.219
Once the right to counsel attaches, the accused must have counsel present at any critical
stage.220 A critical stage is defined as a proceeding between an individual and agents of the state
that amounts to trial-like confrontations at which counsel would help the accused “in coping with
legal problems or meeting his adversary.”221 The constitutional right to counsel is also secured by
Alternatively, if a defendant has not been able to pay their original bail set in Magistrate Court or the defendant is
(charged at large and) only arrested after the return on indictment process, then the defendant and the defense attorney
will be surprised at a bail request that has been made by the district attorney, agreed to by a judge, all in the absence of
the defendant and the defense attorney.
219 Rothgery v. Gillespie County, 554 U.S. 191 (2008).
220 Id. at 212.
221 United States v. Ash, 413 U.S. 300, 312-313 (1973); See also Massiah v. United States, 377 U.S. 201 (1964).
218

46

 Article I § 13 of the Louisiana Constitution, which provides that every person is entitled to counsel
at “each stage of the proceedings” against him. 222 Louisiana Criminal Procedure dictates that
“the accused in every instance has the right to defend himself and to have the assistance of
counsel.”223
It is also strictly prohibited for a judge to permit one party to offer “ex parte arguments or
communications designed to influence his or her judicial action in any case,” without the
opposing party present. 224 The prosecution (and in fact any Louisiana lawyer) has a similar
prohibition from meeting with the judge without opposing counsel present to argue for an
increase in bail.225 Ex parte proceedings need not be private back-room encounters between the
judge and one of the parties involved in litigation, but can maintain their ex parte nature while still
being conducted publicly as long as the opposing party is not present. Ex parte is defined by
Black’s Law Dictionary as,
On one side only; by or for one party; done for, on behalf of, or on the application
of, one party only. A judicial proceeding, order, injunction, etc., is said to be ex
parte when it is taken or granted at the instance and for the benefit of one party
only, and without notice to or contestation by any person adversely interested.226
The return on indictment process regularly occurs every Wednesday or Thursday in a specificallyassigned Criminal District Court section in open court.227 However, there is no set time of the day
it occurs, nor would a defense attorney ever have reason to know that a specific client of theirs
was going to have their bail set or increased unless given notice by the prosecutor.
The defendant should also be present in court for this proceeding if the prosecution chooses to
argue for a bail increase. However, it is difficult for a defendant to make an appearance without
being given notice or without being put on a jail list if the defendant is incarcerated. The U.S.
Supreme Court has affirmatively stated that after the indictment, no proceedings shall be done in
the absence of the accused.228 The defendant’s right to be present at preliminary motions can

La. Const. Art. I § 13. As with the federal constitutional right to counsel, the Louisiana Supreme Court has held that “a
person’s right to the assistance of counsel guaranteed by Article I, § 13 attaches no later than the defendant’s initial
appearance or first judicial hearing.” State v. Hattaway, 621 So.2d 796, 800, 801 (La. 1993) (overruled on separate grounds
by State v. Carter, 94-2859 (La. Nov.27, 1995), 664 So.2d 367); See also State v. Jackson, 27, 855 (La. App. 2 Cir. Apr. 3, 1996),
672 So.2d 215, 221 (“A person’s right to the assistance of counsel attaches as early as his custodial interrogation and no
later than the defendant’s initial court appearance or first judicial hearing at the 72-hour mandated time.”) (emphasis in
original).
223 La. Code Crim. Pro. § 511 (2016).
224 La. Code Jud. Con. § 3(A)(6).
225 Louisiana Rules of Professional Conduct 3.5 “A lawyer shall not: (b) communicate ex parte with such a person during
the proceeding unless authorized to do so by law or court order.”
226 What is EX PARTE? Definition of EX PARTE, The Law Dictionary: Featuring Black's Law Dictionary Free Online Legal
Dictionary 2nd Ed. (2019), available at https://thelawdictionary.org/ex-parte/.
227 Email from Robin LaBranch, Supervisor, Orleans Parish Clerk’s Office, to Veronica Bard, Deputy Dir., Ct. Watch NOLA
(May 4, 2019, 22:07 CST) (on file with author).
228 Lewis v. United States, 13 S. Ct. 136 (1892).
222

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 be lost as a result of the defendant’s misconduct,229 with the defendant’s consent,230 to protect a
witness, 231 or due to the defendant’s voluntary absence, 232 none of which is the case if the
defendant has not even been notified of the court proceeding.
The prosecution will often ask the judge at the return on indictment to issue a capias or a warrant
for the defendant’s arrest for failing to appear at the same proceeding for which the defendant
is not given notice to appear. It is hard to understand how the defendant can be arrested on a
capias warrant for failing to appear in court when neither the defendant nor their attorney was
given notice to appear for the proceeding. Often, this capias warrant for the defendant’s arrest
is granted by the judge despite the defendant not being given notice or having any idea that the
adjournment in fact occurred.233 The U.S. Supreme Court has stated,
Certain pre-trial events . . . may so prejudice the outcome of the defendant’s
prosecution that, as a practical matter, the defendant must be represented at
these events to enjoy genuinely effective assistance at trial.”234 The post-indictment
bail hearing is one of the critical pre-trial events where the defendant must be
present and represented by counsel.
RECOMMENDATION 7: The defendant and the defense attorney must be notified and produced,
respectively, for any bail argument; a bail argument should not be an ex parte proceeding. When
a defendant is “charged at large,” they should be arrested and brought to the arraignment
proceeding where bail can be set if needed. Judges should not entertain a bail argument without
the defendant and the defense attorney present; the defendant’s presence can only be waived
for the bail argument by their attorney or by the defendant’s voluntary failure to appear.
When a judge shows courage and insight, ensuring that the court maintains constitutional
procedures, that judge should be commended by their community. Chief Judge Keva-Landrum
Johnson has shown insight and courage in halting a long-standing practice that violates widely
accepted constitutional norms. Judge Keva-Landrum Johnson demanded the practice of setting
Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S. Ct. 330, 332-343, 78. L. Ed. 674 (1934) (“A leading principle that pervades
the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner
but that the right of being present at proceedings can be lost with the defendant’s consent, the defendant’s
misconduct…No doubt the privilege (of personally confronting witnesses) may be lost by consent or at times even by
misconduct”).
230 Id.
231Maryland v. Craig, 497 U.S. 836, 855 (1990).
232 The Louisiana Supreme Court has also affirmatively ensured that the defendant has the right to be present at the making
of a preliminary motion such as bail where they have not voluntarily waived such a right. The Supreme Court of Louisiana
has recognized that “article 834 provides that the defendant has the right to be present during the making, hearing of, or
ruling on a preliminary motion or application addressed to the court. But this right may be waived by the defendant or his
attorney, by his voluntary absence, or his failure to object to argument or discussion during his absence.” State v. Kahey,
436 So.2d 475, 483–84 (La.1983).
233 While it can be said that the Code of Criminal Procedure Art. §332 (3) allows for the arrest of defendant where the “the
court is satisfied that the bail should be increased or new or additional security required.” there is a difference between a
court issuing a warrant for the arrest of the defendant which is what the statute allows, as compared to a capias which
the statute does not explicitly reference. While a capias is not defined by the Criminal Procedure Code, a capias warrant
is explicitly mentioned in different parts of the code for example in La. Stat. Ann. §5599 (Fees of criminal sheriff) and RS
§5601 ( Fees of the criminal sheriff for sureties for surrender of a defendant or arrest of a defendant) whereas there is no
mention of a capias in the Code of Criminal Procedure Art. §332.
234 United States v. Ash, 413 U. S. 300, 309-310 (1973).
229

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 bail without counsel present stop, after they had received a case in her courtroom in which the
bail had already been increased by another judge at the return on indictment:
COURT: when it says the defendant is at large on bail -- and 332 states what at
large on bail means -- and it gives you three things. And Mr. [REDACTED]'s
does not fall within any of those three things. So there would be no reason
for the state to ask the court to issue a capias for his arrest at the time of
the indictment, because he is not at large on bail. And so for a
representative of the state of Louisiana to stand before that judge, at the
time of the indictment, and ask for a capias for this man who is on a valid
bond to be arrested is a problem. And it has been an ongoing problem.
And you all keep switching up why you're doing it. One day it's because
we're asking for a bond modification. One day it's because we're asking
for this. And it's just disingenuous and it is a problem. My third question:
was the defense attorney notified when this came down?
PROSECUTION: I am not aware of that, Your Honor.
COURT: Was she notified that you all were asking for a modification in his bond?
PROSECUTION: I am not aware of that, Your Honor, other than what Miss
[REDACTED] has represented in court.
COURT: So, again, this was a contradictory hearing that was held before the
judge, where you all, in essence, are holding a motion to increase this
gentleman's bond, without him being present or his lawyer. All a problem.
All a problem. And there is a simple remedy, if you all would just do it the
right way. Which is, have him served for arraignment and ask for a motion
to increase his bond before me. And let me hear it. It's simple. But
because the state wants to circumvent due process and do it your own
way, you don't tell Judge Pittman or the judge that's taking the return all
of the facts. You then ask for a motion to increase a bond without giving
the gentleman a contradictory hearing, when he's represented by
counsel, out on bond. And then you ask for a warrant for his arrest. All a
problem. It is a problem. It's just that simple. So, let me be clear. I'm not
doing a new bail order. Because the bail order is faulty. It comes under
false pretenses. I am recalling the capias. He will remain on the initial
bond that he made. And if you want a motion to increase a bond, you
will ask for it. I will set it for a date. And I'll hear it. It's just that simple. 235
Orleans Parish still has one of the highest rates of wrongful conviction in the country. 236 Although
cases that go to grand jury and are subject to the return on indictment process are a small portion
Court Transcript transcribed by Stenographer Wendy Laker, Criminal District Court Section E, Case Number 541785
(June 27, 2018).
236 The
First 1,600 Exonerations, National Registry of Exonerations, 13-14, (last visited February 12, 2016).
http://www.law.umich.edu/special/exoneration/Documents/1600_Exonerations.pdf. These rankings are based on 1,600
individual exonerations from January 1989 through May 18, 2015. Additionally, the National Registry of Exonerations
reported, “A few large and medium sized counties have exoneration rates per capita 5 to 10 times the national average:
Orleans Parish, Louisiana; Suffolk County, Massachusetts; Kern County, California; and Jefferson Parish, Louisiana.”
235

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 of the overall felony cases in Criminal District Court, these cases are some of the most serious
felonies for which defendants, if convicted, will serve longer sentences and may end up on death
row. National studies have found that when a defendant is incarcerated, they are more likely to
plead guilty.237 It is exactly these more serious cases where the Orleans Parish Criminal Court needs
to be extra vigilant in ensuring that the defendant’s constitutional rights are not violated. Judge
Landrum-Johnson has spoken to and convinced other judges to change their practices regarding
returns on indictments, and she has been transparent with the public about the practice and her
views on the practice.
Commendation 1: CWN commends Chief Judge Landrum-Johnson for ensuring constitutional
rights are upheld in her court during the return on indictment process. She has been courageous
in prohibiting an unsound practice from continuing in her courtroom, persuasive of others on the
bench to abide by the Constitution, and transparent with the public.
B. MUNICIPAL COURT B AIL REFORM
In January 2017, the New Orleans City Council passed comprehensive bail reform for all municipal
(city) offenses. Municipal offenses are criminal statutes passed by the City Council, signed by the
Mayor into law, and promulgated in the New Orleans City Criminal Code. These are offenses for
which a defendant can serve up to a maximum of 8 months in jail,238 which is less serious than the
maximum a defendant could serve on a state misdemeanor 239 and less serious than what a
defendant could serve on a state felony. 240 Typical offenses seen in Municipal Court include
trespass,241 illegal carrying of a weapon,242 and disturbing the peace.243
The municipal bail reform statute requires that a defendant charged only with municipal offenses
and having no warrants244 or additional pending cases be released on their own recognizance
(with no bail)245 unless the defendant is charged with one of five offenses: (1) municipal battery,
(2) assault, (3) illegal carrying of a weapon, (4) impersonating a peace officer, or (5) domestic
violence.246 If the defendant is charged with one of those five offenses, the “court must determine
whether there is a substantial risk that the defendant may flee or poses an imminent danger to
any other person or the community.” 247 If there is no finding of flight or danger, the court must
In one study, examining felony and misdemeanor cases in Philadelphia between September 2006 and February 2013,
pre-trial detention was associated with a 13% increase in the defendant being convicted which was “largely explained
by an increase in guilty pleas among defendants who otherwise would have been acquitted or had their charges
dropped.” Megan T Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, The Journal of
Law, Economics, and Organization, (November 2018), 34, 4, 511–542 https://doi.org/10.1093/jleo/ewy019.
238 Library.municode.com. (2019). Municode Library. available at
https://library.municode.com/la/new_orleans/codes/code_of_ordinances?nodeId=PTIICO_CH54CRCO_ARTIINGE_S5423BA.
239 La. Code Crim. Pro. § 933.
240 Id.
241 New Orleans, La., Code § 54-153 (2019).
242 Id. § 54-341.
243 Id. § 54-403.
244 Id. § 54-23.
245 Id. § 54-23(c).
246 Id. § 54-23(d).
247 Id. § 54-23(e).
237

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 release the defendant with no bail.248 Where there is a court determination of a risk of flight or
danger to another person or the community, the court must impose “the least restrictive nonfinancial release conditions,” such as peace bonds, stay away orders, and protective orders.249 If
a bond is set, it cannot be more than $2,500,250 and the court must inquire into the defendant's
ability to pay.251 The judge is required to state the reasons why the court has imposed bail or pretrial release requirements.252
Although there was a great deal of attention paid to the negotiation and passage of the
municipal misdemeanor bail reform measures, there has been a dearth of attention relating to
judicial compliance with the bail reform statute. CWN has monitored municipal bail hearings in
Municipal Court since late 2016. This has been a challenging court for CWN volunteers to observe,
as judges frequently change the time they will start the court session, usually delaying the court,
but on occasion starting court earlier than the 11 am time period the Municipal Court judges have
previously advised bail hearings would begin.253 That being said, CWN volunteers observed the
court 146 times and observed 3,163 case appearances in 2018.
CWN is pleased to report that in the case sample CWN assessed, that Municipal Court showed full
compliance with the new municipal bail statute. Out of the of 109 cases it reviewed in which
defendants were eligible to be released on their own recognizance (“ROR”) under the municipal
bail statute, defendants in only 8 cases were not released ROR and were ordered to pay bail.
Where bail was set, bail was set consistent with the municipal bail law. The average bail amount
ordered per judge for all municipal cases is set forth in Figure 16 below.

Source: Municipal Court of New Orleans Clerk of Court’s Office; CWN data. n = 8.

Id. § 54-23(e)(1).
Id. § 54-23 (e)(2)(i).
250 Id. § 54-23 (e)(2)(ii).
251 Id.
252 Id. § 54-23(e)(3).
253 Interview with Paul Sens, Chief Judge, Mun. & Traffic Ct. of New Orleans (Mar. 21, 2018).
248
249

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 C. DRUG TEST AND OTH ER COURT FEES
Many observers have concluded that a user-pay system, in which criminal defendants are
required to pay court fines and fees to financially maintain the court system, poses more problems
than it offers solutions.254 A consensus has been reached that courts should not impose fees upon
those least able to afford it.255 In Louisiana, there have already been two class action suits against
the user-pay system.
One civil rights action has been brought against the Governor of Louisiana for insufficiently
resourcing Louisiana public defenders’ offices through a user-pay system.256 The other civil rights
suit was brought originally against the Orleans Parish District Court Judges, the Orleans Parish Clerk,
the Orleans Parish Sheriff’s Office, the City of New Orleans, the Judicial Administrator, and
Magistrate Cantrell over the practice of funding court operations, in part with fines and fees levied
on mainly poor defendants. 257 By December 2017, other defendants were dismissed from the
action and only the Judges were left as responsible defendants in the lawsuit. 258 In this case,
plaintiffs questioned the overuse and the cost of the collections department whose purpose it was
to collect the fines and fees259 from the criminal defendant population, which was then assessed
to be 95% indigent defendants.260 Before the lawsuit, the Collections Department used to issue
warrants for the arrest of these defendants if the payments had not been satisfied.261 While the
judges later took the power away from the collections department to issue warrants that would
lead to the arrest of defendants for nonpayment, it is important to note that in 2014, the cost of
the collections department was $90,554.262 By 2018, the cost of the Collections Department cost
had increased to $133,997.263

Crim. Jus. Pol. Program, Harvard Law School, Confronting Crim. Just. Debt: A Guide for Policy Reform, page 22 (2016)(“A
yearlong NPR investigation found that the costs of the criminal justice system in the United States are paid increasingly by
the defendants and offenders. It’s a practice that causes the poor to face harsher treatment than others who commit
identical crimes and can afford to pay. Some judges and politicians fear the trend has gone too far”).
255 Id. at 25.
256 Southern Poverty Law Center, Ct. Certifies Class Action in SPLC Lawsuit Against La’s Pub. Defender Sys. (Aug. 28, 2018),
https://www.splcenter.org/news/2018/08/28/court-certifies-class-action-splc-lawsuit-against-louisiana%E2%80%99s-publicdefender-system.
257 Cain v. City of New Orleans, 15-4479 (E.D. La. 12/2/15).
258 Matt Sledge, Orleans Judges Say They Have Waived $1M in Court Fees in Response to “Debtors’ Prison” Lawsuit, The
Advocate, June 25, 2017,
https://www.theadvocate.com/new_orleans/news/courts/article_54e60ffa-5833-11e7-87be-e700e5498301.html.
259 Cain, 15-4479 (Second Am. Class Action Comp. ¶ 41) (“Collections Agents are responsible for collecting fines and fees
imposed as well as tracking down defendants who have failed to meet the conditions of their sentence. Inclusive of
those duties are reconciling accounts, providing courts with the status of defendants’ accounts and processing warrants
on delinquent accounts.”).
260 Ken Daley, Judgment Asked in “Debtors’ Prison” Lawsuit Against New Orleans Criminal Court Judges, The TimesPicayune, June 21, 2017, available at https://www.nola.com/crime/2017/06/judgment_asked_in_debtors_pris.html. At a
City Council meeting, Judge Zibilich noted that nearly 95% of the criminal defendants in OPCDC cannot afford an
attorney, and stated: “If they can’t afford an attorney, just imagine how difficult it’s going to be for us to have to chase
them around the block to try to get money from them.” Id.
261 Cain, 15-4479 (Second Am. Class Action Comp. ¶¶ 110-22).
262 Cain, 15-4479 (Exs. in Supp. of Summ. J., Ex. 8 (noting that collections department for OPCDC employed 3 people as
of June 2014, with a combined salary amount of $90,554)).
263 Response to Public Records Request from Robert Kazik, Jud. Adm’r, Orleans Parish Crim. Dist. Ct., to Veronica Bard,
Deputy Dir., Ct. Watch NOLA (Apr. 25, 2019) (on file with CWN).
254

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 The lawsuit against the Orleans Parish Judges and Judicial Administrator did not primarily relate to
the costs defendants were required to pay when forced to take drug tests as a condition of their
bail or pre-trial release.264 According to the Judicial Administrator, drug test fines are never paid
into the Judicial Expense Fund, but instead used to fund the drug testing facility in the court. 265
Defendants are expected to pay for non-diversion program drug tests before they take the drug
test.266 However, if the defendant informs the collections department that they are unable to pay
the drug test fee the day of the test, the cost of the drug fee will be added to the “defendant’s
bill,” which the defendant will be required to pay at the end of their case. 267 According to the
Judicial Administrator, the Court will not search for or arrest a defendant who failed to pay their
outstanding bill for drug tests fees.268
In 2018, the cost of the drug testing facility inside the court was $350,126, an amount which does
not include the one-time cost of the construction of the office itself. In 2018, the cost of the
Collections Department staffing was $133,996.80.269 Defendants paid $74,233 for drug testing fees
in 2018.270 Drug tests for Orleans Parish-based defendants cost $10 each; drug tests for out-of-town
individuals cost $25 each.271

Source: Orleans Criminal District Court Judicial Administrator’s Office.

Telephone Interview with Alec Karakatsanis, Exec. Director, Civil Rights Corps, (Apr. 8, 2019); Telephone Interview with
Eric Foley, Staff Attorney, MacArthur Justice Center (Apr. 10, 2019).
265 Telephone Interview with Robert Kazik, Jud. Adm’r, Orleans Parish Crim. Dist. Ct. (May 13, 2019).
266 Id.
267 Id. at 247.
268 Id.
269 Interview with Robert Kazik, Jud. Adm’r, Orleans Parish Crim. Dist. Ct. (Apr. 15, 2019). The Collections Department is
required to collect all court fines and fees, not just drug test fees.
270 Response to Public Records Request from Robert Kazik, Jud. Adm’r, Orleans Parish Crim. Dist. Ct., to Veronica Bard,
Deputy Dir., Ct. Watch NOLA (Feb. 19, 2019) (on file with CWN).
271 Orleans Crim. Dist. Ct., Drug Testing, http://www.criminalcourt.org/drug-testing.html (last visited May 1, 2019).
264

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 Increasingly, experts are asking whether the collection of court fees makes financial sense. 272 As
the Criminal Justice Program at Harvard University has stated,
In addition to these profound consequences for the fairness of the legal system,
policies for imposing and enforcing criminal justice debt often do not make
financial sense. One of the reasons for the proliferation of criminal justice debt is
the perception by many policymakers at all levels of government that financial
sanctions are necessary to fund the criminal justice system. . . As a result, even from
a purely fiscal perspective, criminal justice debt may not provide jurisdictions with
net economic benefits. Moreover, as a method of funding government, fines and
fees act as a regressive tax, with those who can least afford to pay facing the
greatest liabilities.273
In fact, the user-pay system poses a constant dilemma for the public officials who depend on it,
as well as for the citizens of New Orleans. The federal courts have found it unconstitutional to jail
a defendant unable to pay a court fee, but if the court is unable to pay for services such as drug
testing, then it is City Council, and inevitably the citizens of New Orleans, who must bear this cost. 274
It is clear then why payment for the costs of this collections department has traditionally been
considered a priority for City Council:275 If poor criminal defendants cannot pay their fees, we as
citizens do. Increasingly experts have started to push judges to question whether certain actions
and services that would initially cost indigent users, but later cost taxpayers (when the indigent
court users are unable to pay), are in fact worth the cost. 276 One of the main questions a judge
should ask is what the larger objective is for the court’s drug testing requirement.277 This is especially
true when the criminal case for which the defendant is charged neither relates to drugs, nor is
there strong evidence of a defendant’s drug abuse.278

Valeriya Melta, Debtor’s Prison, Law Street Media (Jun. 4, 2015), https://lawstreetmedia.com/issues/law-andpolitics/debtor-s-prison-criminal-justice-fees-fines-affect-vulnerable-us/ (“The current system of fines and fees isn’t saving
money or raising revenue for the states because it requires vast resources to maintain and support clerks, attorneys,
judges, and probation officers, all those who collect fees and fines from offenders”).
273Crim. Jus. Pol. Program, Harvard Law School, Confronting Crim. Just. Debt: A Guide for Policy Reform, page 2 (2016).
274Cain, 15-4479 (Second Am. Class Action Comp. ¶ 157).
275 Id. (“Consistent with its (City council’s) perennial concern, the Council questioned the judges about why they had
collected only 52% of the money assessed. Several minutes after the discussion about this lawsuit and its allegations of
flagrant violations by the Collections Department, the Council and OPCDC representatives confirmed that the Council
had granted their request for a $92,831 funding increase for the next year to hire two additional Collections Agents. OPCDC
confirmed that this increase for the Collections Department came after private meetings with the Council and was actually
“the only increase that we received after meetings with you.”).
276 Id. at 25.
277 Telephone Interview with Lisa Foster, Co-Director, Fines and Fees Justice Ctr. (Apr. 16, 2019).
278 Id.
272

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 Drug testing people pre-trial when there is no nexus to their alleged offense is unfair,
harmful, and of dubious constitutionality. Why should a person who has not been convicted of
any crime - let alone a drug offense - be forced to pay for constant drug testing? Not
surprisingly, all over the country - even when a person is on probation - lawsuits challenging
routine drug-testing have been successfully challenged.
-Judge Lisa Foster, Former Director of the Office for Access to Justice at the U.S. Department
of Justice & Current Co-Director of the Fines & Fees Justice Center

In a series of civil right cases where private and public departments of probation were challenged
for requiring drug testing, the judicial decisions required that drug testing as a condition of
probation be “reasonably related to the rehabilitation of the defendant.” 279 While the drug testing
of defendants released pending trial is different from the conditions required of those already
convicted and released on probation, the pre-trial criminal defendant has even more rights than
the convicted defendant, including freedom from search and seizure and the protections of
privacy in their bodily function. 280 This is even a greater reason why judges should carefully
question the need for drug testing in individual cases. If the larger purpose of drug testing is to
keep New Orleanians citizens safe in their person and in their home, judges should ask themselves
how drug testing is helping to solve that problem.281
VII. INCARCERATION AND OTHER SANCTIONS
A. CONTEMPT
A judge has the power to fine or imprison a person for contempt of court if, broadly speaking, the
individual does not comply with the court’s lawful order.282 Anyone who appears in front of the
court can be held in contempt, including but not limited to a criminal defendant, witness, victim,
defense attorney, or prosecutor.283 According to the Louisiana Criminal Code, Contempt of Court
is “an act or omission tending to obstruct or interfere with the orderly administration of justice, or
to impair the dignity of the court or respect for its authority.” 284 Contempt includes, in relevant part,

United States v. Tonry, 605 F. Supp. 144, 149-50 (5th Cir. 1979); United States v. Williams, 787 F.2d. 1182, 1185 (1986); See
also U.S. Dep’t of Justice, Nat’l Inst. of Corrections, Legal Issues in Drug Testing Probation and Parole Clients and Employees,
available at https://www.ncjrs.gov/pdffiles1/Digitization/121383NCJRS.pdf. In fact, in Louisiana cases, conditions of
probation not reasonably related to the rehabilitation of the defendant have been struck down. State v. Labure, 427 So.2d
855 (La. 1983); State v. Carey, 392 So.2d 443, 444 (La. 1981); State v. Spano, 380 So.2d 620 (La. 1980); State v. Sartain, 571
So.2d 192 (La. App. 4 Cir. 1990); State v. Morgan, 459 So.2d 6 (La. App. 1 Cir 1984), writ denied 462 So.2d 1263 (La. 1985);
State v. Thomas, 428 So.2d 950 (La. App. 1 Cir. 1983); State v. Hammonds, 434 So. 2d 452 (La. App. 2 Cir 1983).
280 Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (Blackmun, J., concurring in judgement) (quoting New Jersey v. T.LO., 469
U.S. 325, 351 (1985).
281 Telephone Interview with Lisa Foster.
282 La. Code Crim. Pro. art. 17.
283 Id. arts. 21, 23 (“Direct contempt” and “Constructive contempt,” respectively).
284 There are two different types of contempt of court: direct contempt and constructive contempt. LA Code Crim Pro 21;
Direct contempt is an act “committed in the immediate view and presence of the court and of which it (the court) has
personal knowledge,” and constructive contempt is any contempt that is not a direct contempt. LA Code Crim Pro 23.
279

55

 any willful disobedience of any lawful judgment, order, mandate, writ, or process of court.” 285 A
contempt of court proceeding is criminal when the court seeks to punish a person for disobeying
a court order.286 However, in order to constitute the willful disobedience necessary for criminal
contempt, the act or refusal to act must be engaged in with an intent to defy the authority of the
court.287Additionally, the defendant has due process rights under the Fourteenth Amendment that
require there be “proof beyond a reasonable doubt of every fact necessary to constitute the
crime of contempt for which he is charged.” 288 Where contempt cases are appealed, they are
appealed on an abuse of discretion standard.289
CWN examined two different instances of contempt in criminal district court: one where the judge
held a criminal defendant in contempt for failing to hire a private criminal defense attorney and
the other for failing a court-administered drug test.
1. CONTEMPT FOR FAILURE TO HIRE A PRIVATE ATTORNEY
The Sixth Amendment of the U.S. Constitution requires that a criminal defendant be appointed an
attorney if they cannot afford to hire one.290 In Louisiana, the procedure by which it is determined
whether a defendant must hire a private attorney or will be appointed a public defender is a
comprehensive process established in Revised Statute §15:175 which states, in part:
A(1)(b) A person will be deemed “indigent” who is unable, without substantial
financial hardship to himself or to his dependents, to obtain competent, qualified
legal representation on his own. "Substantial financial hardship" is presumptively
determined to include all defendants who receive public assistance, such as Food
Stamps, Temporary Assistance for Needy Families, Medicaid, Disability Insurance,
resides in public housing, or earns less than two hundred percent of the Federal
Poverty Guideline. A defendant is presumed to have a substantial financial
hardship if he or she is currently serving a sentence in a correctional institution or is
housed in a mental health facility. (c) Defendants not falling below the
presumptive threshold will be subjected to a more rigorous screening process to
determine if their particular circumstances, including seriousness of the charges
being faced, monthly expenses, local private counsel rates, would result in a
“substantial hardship” were they to seek to retain private counsel.
B(1) In determining whether or not a person is indigent and entitled to the
appointment of counsel, the court shall consider whether the person is a needy
person and the extent of his ability to pay. The court may consider such factors as
This definition specifically relates to constructive contempt. State in Interest of R.J.S., 493 So. 2d 1199, 1202-03 (La.
1986); La. Code Crim. Pro. art. 23(2).
286 Interest of R.J.S., 493 So.2d at 1202 & n.7. Contempt is punishable by a fine of not more than five hundred dollars, or by
imprisonment for not more than six months or both. For an attorney (as compared to a non-attorney), the fine is limited to
one hundred dollars, and imprisonment to twenty-four hours. La. Code Crim. Pro. art. 25 (“Penalties for contempt”).
287 Billiot v. Billiot, 805 So. 2d 1170, 1174 (La. 2002).
288 In re Winship, 397 U.S. 358 (1970).
289 Green v. United States, 356 U.S. 165, 188 (1958) (overturned on other grounds).
290 U.S. Const. amend. XI.
285

56

 income or funds from employment or any other source, including public assistance,
to which the accused is entitled, property owned by the accused or in which he
has an economic interest, outstanding obligations, the number and ages of
dependents, employment and job training history, and level of education.
(2) Release on bail alone shall not disqualify a person for appointment of counsel.
In each case, the person subject to the penalty of perjury shall certify in writing such
material factors relating to his ability to pay as the court prescribes [emphasis
added].291
Clearly, it is an intricate and involved process to determine when a criminal defendant is allowed
a public defender and when the defendant is required to hire a private defense attorney. The
Orleans Public Defenders Office represented 85% of criminal defendants in 2018. 292 However, the
Orleans Public Defenders has traditionally reported having an insufficient amount of resources to
constitutionally represent all the criminal defendants they are required to represent. While it is a
public policy priority to ensure that only those who qualify as indigent receive a public defender,
the adverse is also true: those who are indigent should not be forced to hire a private defense
attorney.

n = 180.

Some Orleans Parish Criminal District judges require a criminal defendant to fill out a declaration
La. Rev. Stat. Ann. §15:175.
E-mail from Lindsey Hortenstine, Dir. of Comms. & Dev., Orleans Pub. Defenders, to Simone Levine, Executive Dir. &
Veronica Bard, Deputy Dir., Ct. Watch NOLA (Apr. 12, 2019, 09:54:00 CST).
291
292

57

 form that includes questions relating to the defendant’s financial status. 293 Other judges ask the
defendant specific financial status questions, which the defendant is required to answer orally.
While the Criminal Procedure code prohibits a judge from requiring a criminal defendant to hire
private counsel based solely on the defendant’s release on bail, some judges still required a
defendant to hire a private defense attorney solely because the defendant has made bail in 2018.
CWN did not collect data in Magistrate Court relating to whether judges required defendants to
hire private defense attorneys based solely on the defendant paying their bail. However, CWN
has observed court paperwork establishing that this practice regularly occurs in Magistrate Court.
CWN volunteers have witnessed the following judges require a criminal defendant to hire a private
defense attorney based solely on whether they pay bail and are released: Judge Derbigny (two
cases); Judge White (one case); Judge Landrum-Johnson (one case); Bonin (one case); Judge
Zibilich (one case).
Figure 19

Figure 20

n = 180.

n = 180.

Figure 20 shows the percentage of times a criminal district court judge threatened to or actually
jailed a criminal defendant for failing to hire a private defense attorney. The contempt power of
trial courts goes unchecked most times a judge finds someone in contempt. Lawyers feel the need
to concede the issue and it is rarely appealed.294 This is the case despite the U.S. Supreme Court’s
warning of the potential for abuse in using imprisonment as a sanction for contempt, citing it as
an ‘arbitrary’ power which is ‘liable to abuse’ and warning that care is needed to avoid arbitrary
or oppressive conclusions.”295 As one law journal specifically stated,
The problem is that no one calls these judges out on their improper behavior—
except, under exceptional circumstances, a disciplinary commission or appellate
court or the press. Court staff—clerks, court officers, bailiffs, court reporters,
probation officers—have little incentive to criticize judges and are loath to do so in
Telephone Interview with Danny Engelberg, Orleans Pub. Defenders, Chief of Trials (April 19, 2019).
Louis Raveson, A New Perspective on the Judicial Contempt Power, Hasting Constitutional Law, at 4, 18 Hastings Bus
L.J. 1 (1990).
295 Bloom v. Illinois, 391 U.S. 194, 202 (1968).
293
294

58

 view of their place on the court totem pole. Other trial judges feel it is none of their
business unless they have a supervisory role. Trial lawyers cannot call judges out on
their bullying without risking reprisal. Many lawyers—especially public defenders—
are repeat players.296
And yet we know that where the public has a positive perception of courtroom procedure as fair,
neutral, and respectful, it results in reduced recidivism and increased compliance with court
orders.297 Procedural fairness, also known as procedural justice, is an evidence-based practice
endorsed by the American Judges Association, National Center for State Courts, Conference of
Chief Justices, and Conference of State Court Administrators. 298 As the latter two groups recently
stated, “Extensive research demonstrates that, in addition to providing legal due process, it is
important [for courts] to meet the public’s expectations regarding the process in order to increase
positive public perceptions of the court system.” 299 Procedural fairness relates to the serious, realworld implications of whether the public perceives courtroom procedure to be fair, neutral, and
respectful.300 Thus, substantive law and objective case processing data mean little in this critical
area. Instead, it is the lay public’s (admittedly subjective) perception that matters.301 And while
the police, lawyers, and court staff influence the public’s perception of procedural fairness, the
judge is the primary contributor to whether people feel they are being treated fairly. 302 Judges,
like other public servants, are not entitled to the public's trust, but must instead earn it.
CWN found two 2018 cases in which a Criminal District Court Judge held a criminal defendant in
contempt for failing to hire a private defense attorney. In Criminal District Court Section D, Judge
Paul Bonin’s courtroom, a defendant was incarcerated by Judge Bonin for four days until they
could pay the $8,500 bail to be released. Judge Bonin originally remanded the defendant (so that
there was no bail they could pay to be released) for nine days until changing the order to allow
the defendant to pay bail and be released. The defendant had no attorney present to defend
them from the contempt order or to show their failure to hire an attorney was not made “with an
intent to defy the authority of the court.”
Abbe Smith, Judges as Bullies, 46 Hofstra Law Review 253, 272 (2017), available at
https://www.hofstralawreview.org/wp-content/uploads/2018/02/BB.10.Smith_.pdf.
297 Resol. 12, Conf. of Chief JJs./Conf. of State Ct. Adm’rs, Access, Fairness and Pub. Trust Comm. (Jul. 31, 2013),
http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07312013-Support-State-Supreme-Court-LeadershipPromote-Procedural-Fairness-CCJCOSCA.ashx.
298 See Susanne Beier, et al., Influence of Judges’ Behavior on Perceived Procedural Justice, 44 J. of Applied Social
Psychology 57 (2013) (Noting that neutral observers may be better suited to making procedural fairness judgments than
defendants themselves because they may have “a more objective perception of the [defendant’s] actual treatment.”).
Utah and Alaska, two leaders in the procedural fairness movement, also use citizen observers to rate Judges as part of the
two states’ official judicial performance evaluations. Hon. Steve Leben, The Procedural-Fairness Movement Comes of Age,
Nat’l Ctr. for State Cts., Trends in State Cts. 60-61 (2014).
299 Resol. 12, Conf. of Chief JJs./Conf. of State Ct. Adm’rs, Access, Fairness and Pub. Trust Comm. (Jul. 31, 2013),
http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07312013-Support-State-Supreme-Court-LeadershipPromote-Procedural-Fairness-CCJCOSCA.ashx.
300 Kevin Burke & Steve Leben, Procedural Fairness: A Key Ingredient in Public Satisfaction (2007), available at
http://www.proceduralfairness.org/~/media/Microsites/Files/procedural-fairness/Burke_Leben.ashx; Resol. 12, Conf. of
Chief JJs./Conf. of State Ct. Adm’rs, Access, Fairness and Pub. Trust Comm. (Jul. 31, 2013),
http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07312013-Support-State-Supreme-Court-LeadershipPromote-Procedural-Fairness-CCJCOSCA.ashx.
301 Kevin Burke & Steve Leben, Procedural Fairness: A Key Ingredient in Public Satisfaction (2007), available at
http://www.proceduralfairness.org/~/media/Microsites/Files/procedural-fairness/Burke_Leben.ashx.
302 Id.
296

59

 COURT: Do you have a lawyer, Mr. [REDACTED]?
DEFENDANT: Yes. I'm going to go with the public defender's office.
COURT: That's not quite how it works. What kind of work do you do?
DEFENDANT: On the river, a superintendent.
COURT: You're going to need to fill out a financial declaration sheet. He's going to
give you a paper to fill out about your finances. It's going to be under
oath. Let me see his record Mr. Marullo, 540-824.
CLERK: Yes, sir.
(RECESS)
PROSECUTOR: Your Honor, Page 1 of this docket [REDACTED]. As a reminder, your
Honor, we had originally had the arraignment set for April 30, 2018. The
defendant showed up. I believe we had reset the arraignment until the
16th. The defendant was looking into something, and on the 16th we were
out. So it is set today for arraignment.
COURT: Have you filled out the paperwork?
DEFENDANT: Yes.
COURT: It hasn't been filled out. You don't have any amounts in there.
DEFENDANT: Amount of what? How much I make?
COURT: Yes.
DEFENDANT: I don't know how much I make.
COURT: okay. That's fine. It's useless to me. Stand up. You look like you feel very
inconvenienced.
DEFENDANT: No. I'm tired.
COURT: I'm sorry for that. I'm very sorry for that. All right, Mr. [REDACTED]. On April
30th I told that you were going to need to get your own lawyer.
DEFENDANT: Yes.
COURT: And you come here without a lawyer.
DEFENDANT: Yes.
COURT: All right. I'm going to remand you to the custody of the sheriff. I will set this
matter for next Monday for hearing to determine counsel.
DEFENDANT: Until next Monday?
COURT: Yes.
DEFENDANT: Excuse me, Judge.
COURT: Yes?
DEFENDANT: I'm wondering why I'm in custody right now?
COURT: Because you're in contempt of court.
DEFENDANT: How am I in contempt of court?
COURT: Because I told you to come with a lawyer.
DEFENDANT: Look, I went to the public defender.
COURT: Do you want to talk? Come over here and talk. Do you want to act cute
with me padnah [sic]?303 Let me tell you something: when I gave you that
financial form, you are supposed to tell how much you make. Do you
303

Padnah, pronounced paard-nah, is likely used as slang for partner.

60

 want me to believe you don't know how much you make? You must be
the only man in America who doesn't know how much he makes. You
must be the only man in America who doesn't know how much he makes.
DEFENDANT: Because my check stub -- that's how much you talking about? Or
are you talking about through the year?
COURT: What am I talking about?
DEFENDANT: or are you talking about through the year? I pay child support so I
don't really know how much I make because my job is temporary, like a
temp service.
COURT: That's it? So you couldn't put any figures down? You were unable to put
any figures down?
DEFENDANT: See, I -COURT: See, you're talking to me like I'm stupid.
DEFENDANT: No, I'm not talking stupid.
COURT: You really are. You really are.
DEFENDANT: You want to know how much I make during my temp, yeah. I can't
tell you how much I make during the year because they seized me.
COURT: That's not what that question asked.
DEFENDANT: I made -- I didn't understand the question. Maybe I didn't do that. I
ain't tripping about telling you how much I pay. That's nothing. You think
I'm going to play with you behind that?
COURT: Yeah, I do.
DEFENDANT: Really?
COURT: Because you really look like you're quite put out about being here.
DEFENDANT: No. I'm tired. I just got off of work at nine o'clock. I have been at
work 16 hours.
COURT: You should have asked them how much they are paying you.
DEFENDANT: Judge, no way I can get out of jail? I can't have no bond?
COURT: Do you want to fill out a form and act like this is a serious matter?
DEFENDANT: This is serious. How you figure it ain't serious to me?
COURT: Never mind. Never mind.
DEFENDANT: It's is serious to me. That's why I'm asking you. No, I wouldn't be talking
to you if I didn't feel like it was serious.
COURT: sit down. Put him down not Monday because Monday is a holiday. May
30th.304
In Judge Darryl Derbigny’s Section J, a defendant was sentenced to 25 hours of community
service for contempt when they failed to hire a private defense attorney. This defendant had
previously been appointed a public defender on an earlier, and still open, pending case (when
they were held in contempt).
PROSECUTOR: Judge, if we could turn to page 8 of the docket for Case No.
304

Transcript transcribed by Stenographer Eve Kazik, Criminal District Court Section D, Case No. 540824, (May 21, 2018).

61

 [REDACTED] and [REDACTED], [REDACTED]. It's set for a hearing to
determine counsel, Judge.
COURT: Yes, sir. Who's your lawyer, sir?
DEFENDANT: I didn't get one.
COURT: Did I tell you go hire somebody?
DEFENDANT: Yeah, I tried to. I called lawyers around and -COURT: How many people did you see, Mr. [REDACTED]?
DEFENDANT: I saw five people.
THE COURT: Do you have a list for me?
DEFENDANT: No.
COURT: Okay. Sit down and write the names of the people that you saw for me. I
want to know that.
DEFENDANT: Okay.
COURT: Let's call another matter while that happens.
(OTHER COURT MATTERS WERE HANDLED.)
PROSECUTOR: Judge, if we can turn to [REDACTED], page 8.
COURT: [REDACTED], step up. (DEFENDANT COMPLIES.)
COURT: First things first, Mr. [REDACTED]. I'm not satisfied that you were
forthcoming with the Court when you told me about your attempts to
contact lawyers. I'm going to hold you in contempt, Mr. [REDACTED]. I'm
going to order you to perform 25 hours of community service in this
building. Do you understand that, sir?
DEFENDANT: Okay.
COURT: All right. And you are going to get that information to go down and do
that service before you leave here today, okay?
DEFENDANT: The whole 25 hours, like -COURT: You are going to discuss that with my staff. Okay? I will formally appoint
Public Defender's Office to represent Mr. [REDACTED] in all pending
cases.305
These two cases represent the minimum number of 2018 cases where a criminal defendant was
held in contempt for failing to hire a private attorney.
Recommendation 8: Courts should hold a defendant in contempt for failure to hire a private
defense attorney only if there is proof beyond a reasonable doubt that the defendant willfully
disobeyed the court’s order to hire a private defense attorney. Additionally, courts should carefully
determine a defendant’s ability to pay for a private attorney before ordering them to do so. In
addition to providing legal due process, it is important for judges to meet the public’s expectations
that courtroom procedure be fair, neutral, and respectful.

Transcript transcribed by Stenographer Natasha Kahler, Criminal District Court Section J, Case No. 541835, (May 21,
2018).
305

62

 2. CONTEMPT FOR A POSITIVE DRUG SCREEN TE ST
The Orleans Criminal District Court Drug Testing Lab Policy and Procedure Manual (“Manual”) sets
forth the Court’s goals of drug testing as, “[A] deterrent to future drug use; Identify donors who
need treatment; Identify donors who are maintaining abstinence; Identify donors who have
relapsed; Provide incentive, support and accountability for donors; Adjunct to treatment and
frames [sic.] sanction decisions.”306

I think we try to make them a better person. When they come out of the system, we would like
to think that they were better than when they went in the system. . . Substance abuse
counseling is another big problem. . . When they come into the system, it’s sort of incumbent
upon us to try to get them to solve that problem.
-Leon Cannizzaro, Orleans Parish District Attorney (at a recent discussion on “The State of the
City” hosted by The Atlantic)
These therapeutic goals are being undermined in several ways. First, the Manual does not
represent scientific best practices, in which the presumptively positive drug test is confirmed using
a definitive alternative testing method such as LC-MS/MS.307 Second, the Orleans Criminal District
Court Drug Testing Lab (“Drug Testing Lab” or “Lab”) does not appear to follow its own Policy and
Procedure Manual in several respects. Third, drug testing of defendants in Orleans Criminal District
Court appears to be a common occurrence, and heavily weighted toward punitive sanctions
(increased or forfeited bond, incarceration, fines, or community service) as opposed to treatment
options, circumstances unlikely to decrease recidivism.
In order to rely on drug testing to decide whether to sanction defendants, the Court must have a
reasonable understanding of scientific evidence-based standards, as well as an understanding of
the limitations of the available drug testing equipment. According to The Drug Court Judicial
Benchbook, “When drug testing is performed on site, within the purview of the court, it becomes
the responsibility of the court, and ultimately the judge, to guarantee that the testing is
accomplished in a forensically acceptable manner.” 308 All too often court personnel draw
unwarranted or unsupportable conclusions from drug-testing results that would not withstand
scientific challenge or legal scrutiny.”309
Drug testing, according to both the scientific community and the National Drug Court Institute,
should be done in two steps to produce the most reliable and accurate results: (1) screening and

Orleans Criminal District Court Drug Testing Lab Policy and Procedure Manual at 4.
See Jarvis, et al. at 9.
308 Drug Court Judicial Benchbook at 125.
309 Id. at 126 (also noting that the “judiciary should recognize that there is often a gap between the questions that legal
professionals would like to have answered by drug testing and the answers that the scientific community can
legitimately provide”).
306
307

63

 (2) confirmation.310 Screening, analogous to “casting a wide net,” occurs with a qualitative test
called immunoassay. 311 An immunoassay “reacts to the presence of a class of drugs” by
indicating whether the drug test sample reaches a cutoff level, or a certain amount of the target
substance. 312 When a drug screen reaches the cutoff level, the results are considered
presumptively positive until confirmed by a definitive test. 313 The results are then confirmed by
running the same drug test sample through an alternative testing method. 314 Confirmation,
analogous to casting a “smaller, more refined net,” should occur by gas or liquid chromatography
combined with mass spectrometry (“LC-MS/MS”), which together are considered the “gold
standard methods of drug testing.”315 Chromatography is applied to separate a drug test sample
into its component parts, while mass spectrometry identifies those parts. 316 Put another way,
samples that are positive by the screening assay are double-checked using a second, different
test to ensure that the first test was indeed accurate. Confirmation of a presumptive positive test
is one of the surest techniques to eliminate false positive results.” 317 If a re-test of the same sample
using the same testing method arrives at a different conclusion from the initial screen, that merely
indicates an inconsistency within the screening machinery and not a separate drug test result. 318
A confirmation policy adds a greater level of fairness and certainty to the drug-testing process,
while at the same time minimizing potential legal issues concerning the validity of test results.” 319
The Drug Testing Lab is located on the first floor of Orleans Criminal District Court. The drug testing
analyzer within the Lab is capable of screening drugs through urinalysis immunoassay. 320 Although
the Manual states, “Drug testing procedures follow all state and federal guidelines, including those
applicable to ‘screening’ and ‘confirmation,’” 321 the Lab lacks any equipment capable of
performing definitive drug tests such as LC-MS/MS,322 and there is no indication that drug testing
samples are sent off-site to confirm presumptively positive test results. Rather, the Manual explains
the following procedure,
Donors are initially screened for a 9-panel (Full Panel) test to include detection of
cocaine, marijuana, opiates, creatinine and alcohol, methadone, ecstasy,
benzodiazepines and amphetamines. The screen also includes the client’s drug of
See Margaret Jarvis et al., Consensus Statement: Appropriate Use of Drug Testing in Clinical Addiction Med., 11 J. of
Addiction Med. 163-73 (2017); See also National Drug Ct. Inst., The Drug Court Judicial Benchbook, 123-24 (Douglas B.
Marlowe & William G. Meyer eds., 2011).
311 Margaret Jarvis et al., Consensus Statement: Appropriate Use of Drug Testing in Clinical Addiction Medicine, 9 (Am.
Soc. of Addiction Med. 2017).
312 Id. at 8.
313 Id. at 10.
314 Id. at 9.
315 Id.
316 Id.
317 Id.
318 Interview with Dr. Arwen Podesta & Dr. George Singletary, in New Orleans, La. (Feb. 4, 2019).
319 Nat’l Drug Ct. Inst. at 124; See also Alere Toxicology, Drug Detection and Monitoring Chart: Common Drug of Abuse,
2013 (examination of LC-MS/MS results following immunoassay testing found rates of false positive results including 61%
benzodiazepines, 46% methadone, 21% marijuana, 21% amphetamines, and 12% cocaine identified as positive on
immunoassay but negative on LC-MS/MS.
320 Agreement for Services Between DCI and New Orleans Criminal Ct. (June 8-9, 2019) (on file with CWN).
321 Orleans Criminal District Court Drug Testing Lab Policy and Procedure Manual P. 4 (rev. 2013-12).
322 Response to Public Records Request from Robert Kazik, Orleans Crim. Dist. Ct. Jud. Adm’r, to Veronica Bard, CWN
Deputy Dir. (Feb. 21, 2019) (on file with CWN).
310

64

 choice as well as any other drug or drugs as ordered by the judge and/or case
manager.
Thereafter, donors are screened for a minimum 7-panel (Basic Panel) result to
include detection of cocaine, marijuana, opiates, creatinine and alcohol,
methadone, and amphetamines. The screen should also include the client’s drug
of choice as well as any other drug or drugs as ordered by the judge and/or case
manager.
All positive tests, regardless of the drug or drugs, will be automatically retested [sic.]
by the drug screening lab for confirmation. This retest [sic.] will be conducted from
the same urine sample as the original test.323
CWN volunteers reviewed case files of defendants who were held in contempt of court for having
a positive drug test result in 2018. Drug test results were not always found in case files, and CWN
volunteers were able to review results in eleven cases. In each case, there was no confirmation of
positive drug screen results using an alternative testing method on the same sample. In nine cases,
there was no re-test of positive drug screens in the case file. In two cases, defendants produced
a sample which had a positive result and then produced another sample the following day or two
days later which also yielded a positive result. This is contrary to scientific best practices, which
require confirmation using a different testing method on the same sample. Criminal District Court
Judicial Administrator Robert Kazik stated that the Drug Testing Lab automatically retests positive
drug screen results and produces only one report per case file.324 CWN also found that the number
of drugs screened did not vary within cases, as set forth in the Manual. For instance, if a defendant
was tested multiple times, they were always screened based on the 7-drug Basic Panel. According
to The Drug Court Judicial Benchbook, “In order for case adjudication to be appropriate,
consistent, and equitable, drug detection procedures must produce results that are scientifically
valid and forensically defensible.”325 There are real concerns that in Criminal District Court this is
not the case. For the above reasons, CWN finds that sanctions based on positive drug screens in
Orleans Criminal District Court are inappropriate, inconsistent, and inequitable.
Drug testing of defendants in Orleans Parish District Court appears to be a common occurrence,
with increased or forfeited bond, incarceration, fines, or community service frequently imposed
as sanctions for a positive test. There are several points in a case when a defendant may be
ordered to take a drug test. Depending on a defendant’s criminal charges, the Magistrate Judge
or Commissioner may be statutorily required to order at least one drug test, which is typically
ordered at the defendant’s first appearance in Magistrate Court.326 CWN volunteers observed the
Magistrate Judge or Commissioner condition a defendant’s bail release upon drug tests in 6% of
defendants’ first appearances in court.327 Once released on bond and allotted (assigned) to a
Orleans Criminal District Court Drug Testing Lab Policy and Procedure Manual P. 4 (rev. 2013-12).
Telephone Interview with Robert Kazik, Jud. Adm’r, Orleans Parish Crim. Dist. Ct. (May 13, 2019).
325 Drug Court Judicial Benchbook at 115.
326 La. Stat. Ann. § 320, “Every person arrested for a violation of the Uniform Controlled Dangerous Substances Law or a
crime of violence as provided in R.S. 14:2(B) shall be required to submit to a pre-trial drug test for the presence of
designated substances in accordance with the provisions of this Article and rules of court governing such testing.”
327 N = 1,485 first appearances in 2018 in Orleans Parish Magistrate Court.
323
324

65

 Criminal District Court section, the Criminal District Court judge may require the defendant to
undergo drug testing where the Magistrate or Commissioner did not. Sanctions for a positive drug
screen vary from judge to judge and case to case.
CWN located cases where defendants were held in contempt of court in 2018 for positive drug
results in the following judges’ sections: Judge Laurie White, Judge Benedict Willard, Judge Paul
Bonin, Judge Robin Pittman, and Judge Franz Zibilich. This does not mean that contempt for drug
cases did not occur in other judges’ courtrooms; CWN’s observations represent the minimum
number of 2018 contempt cases. Of these contempt cases found by CWN, defendants
incarcerated for positive drug screens were jailed an average of 18 days. 328 The cases listed in
Table 3 do not identify whether the defendants had received multiple positive drug screen results
before they were held in contempt, as this information was often not found in court case files
examined by CWN. This report also does not address the number of cases in which judges referred
defendants to social services as opposed to incarceration, and the defendants ultimately
became successful in leading an addiction-free lifestyle without reentering the criminal justice
system. Criminal District Court operates Court Intervention Services (CIS), which includes various
programs, such as Drug Court. In lieu of incarceration, judges can place a defendant with a
substance abuse problem on probation, with a requirement of Drug Court. The judge may also
require outpatient or inpatient drug treatment, as the goal is to help those addicted to substances
live a sober, productive life. Table 3 lists Criminal District Court judges who held defendants in
contempt, the number of defendants held in contempt, and defendants’ sanctions for positive
drug screens in 2018.
Table 3: Defendants Sanctioned for Positive Drug Screens in 2018

Judge

Defendants Held in Contempt
for Positive Drug Screens

Sanction for Positive Drug Screens

White

3

Willard

56

●
●
●

49 were incarcerated an average of 20 days.
2 were fined $250 and $400, respectively.
5 case files did not list a punishment.

Bonin

9

●
●
●

3 were incarcerated an average of 2 days.
1 received 50 hours of community service.
5 case files did not list a punishment.

Pittman

4

●
●

2 were incarcerated an average of 11 days.
2 were fined $100 in lieu of 24 hours in jail.

Zibilich

5

328

Each was fined $500.

Defendants were incarcerated an average of 10 days.

N = 59.

66

 In 2016, the City of New Orleans shifted away from the policy of incarcerating individuals solely for
marijuana possession.329 Notably, DA Cannizzaro said at “The State of the City” discussion hosted
by The Atlantic, “People who test positive for marijuana . . . understand the issue. I understand that
issue, and I think that many of the judges do not put people in jail simply because they test dirty
for marijuana.” 330 Nevertheless, out of the eleven public case files containing drug test results,
CWN volunteers found two cases in which defendants who had tested positive only for
cannabinoid (marijuana) were held in contempt and incarcerated. Again, these contempt cases
for marijuana represent the minimum number of cases in 2018.

Marijuana Cases
The 1st defendant was screened for 10 drugs, tested positive
for marijuana, and incarcerated by Judge Willard for 34 days.
The 2nd defendant was screened for 7 drugs, tested positive for
marijuana, and incarcerated by Judge Bonin for 3 days.

Some believe that requiring individuals in the criminal justice system to abide by specific conditions
for their release, whether pre-trial or post-conviction, enhances the individual’s opportunities to
succeed in life without reverting to crime. For example, at the “State of the City” discussion, DA
Cannizzaro said,
You’re not gonna throw the first[-time] offender in jail, and you’re gonna put
conditions on that probation that the judge realizes or recognizes would prevent
that person from coming back into the system again, like education, substance
abuse counseling, job training, mental health treatment. . . 331 The problem that we
see on- in- in many of the circumstances in where they end up in Sheriff Gusman’s
jail is because they don’t comply with those conditions of probation; they- they
sometimes just, they thumb their nose at ‘em, they- they simply defy them.332
During the discussion, OPD Chief District Defender Derwyn Bunton stated,
If the problem is substance abuse, and the symptom is crime, I don’t go to jail to
get drug treatment; I go to a hospital. . . Let that man be a husband and father.
Let that man go to work every day and every time he gives you a dirty test say
man, it’s another dirty test. Are you late on any of your bills? No. Are you a father
to your children? Yes. Are you a husband to your wife? Yes. Well, I guess we’ve just
got to chalk this one up to another dirty test.333
City of New Orleans Ordinance 31,148 (Mar. 23, 2016).
Leon Cannizzaro, Remarks at The Atlantic.
331 Id.
332 Id.
333 Derwyn Bunton, Remarks at The Atlantic.
329
330

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 Chief Justice of Criminal District Court, Keva Landrum-Johnson then weighed in with the following
statement:
I don’t give people a bunch of conditions that I think people will fail. So, honestly,
if you’re a first offender, I am not going to give any conditions. I don’t- I don’t
mandate drug tests. I don’t mandate GEDs. I don’t mandate those things, because
I don’t want people to not be successful. I want people to ultimately be successful.
And so, the fact is, I am not going to put up a bunch of barriers that people will not
be able to cross.334
Judge Tracey Flemings Davallier serves as both a Drug Court judge and as the Judicial Liaison for
Court Intervention Services (CIS) which includes Drug Court. She states,
"In lieu of incarceration, judges will place a defendant with a substance abuse problem
on probation, with a requirement of Drug Court or may require outpatient or inpatient drug
treatment, as the goal is to help those addicted to substances address the underlying
causes of such abuse with intensive case management and a myriad of counseling
services. This approach affords offenders the opportunity to live a sober, healthy and
productive life; and to decrease the chances of recidivism. Drug Testing is a vital part of
any drug treatment and case management as it allows for a meaningful and effective
course of action. "335
In fact, numerous post-conviction studies indicate that requiring probationers or parolees to
comply with a regular condition such as drug testing is ineffective in reducing recidivism. 336 The
Brookings Institute reviewed five studies 337 published between 2010 and 2017 and arrived at the
following conclusion:
These studies show that current efforts to reduce recidivism through intensive
supervision are not working. Why is intensive supervision so ineffective? Requiring
lots of meetings, drug tests, and so on can complicate a client’s life, making it more
difficult to get to work or school or care for family members (meetings are often
scheduled at inconvenient times and may be far away). A heavy tether to the
criminal justice system can also make it difficult for individuals to move on,
psychologically. Knowing that society still considers you a criminal may make it
harder to move past that phase of your life. These difficulties may negate the
Keva Landrum-Johnson, Remarks at The Atlantic.
Email from Judge Tracey Flemings-Davillier, to Simone Levine, Dir., Ct. Watch NOLA (May 13, 2019, 11:38 CST) (on file
with author).
334
335

Doleac, Jennifer L. “Study after Study Shows Ex-Prisoners Would be Better off without Intense Supervision,” Brookings
Inst. (07/02/2018) https://www.brookings.edu/blog/up-front/2018/07/02/study-after-study-shows-ex-prisoners-would-bebetter-off-without-intense-supervision/ (accessed 04/17/2019).
337“Five Year Outcomes in a Randomized Trial of a Community-Based Multi-Agency Intensive Supervision Juvenile Probation
Program;” “The effects of low-intensity supervision for lower-risk probationers: updated results from a randomized controlled
trial;” “An Evaluation of Day Reporting Centers for Parolees: Outcomes of a Randomized Trial;” “Does increased postrelease supervision of criminal offenders reduce recidivism? Evidence from a statewide quasi-experiment;” and “An
Experimental Evaluation of the Impact of Intensive Supervision on the Recidivism of High-Risk Probationers.”
336

68

 valuable support that probation and parole officers can provide by connecting
clients to services and stepping in to help at the first sign of trouble. 338
In other words, probationers and parolees may not be made “better than when they went in the
system”339 by regular drug testing. On the contrary, excessive drug testing and a focus on punitive
sanctions as opposed to treatment options can only contribute to recidivism, whether pre-trial or
post-conviction.
RECOMMENDATION 9: Judges should not sanction defendants without proper testing that follows
scientific best practices. The Drug Testing Lab should research available definitive confirmation
testing options. Once the Lab has a scientifically accepted procedure in place, the Lab should
execute its procedures consistently in every case. Judges should carefully consider their
objectives for ordering each drug test and question whether a drug test required of a specific
defendant at that specific moment will help achieve those judicial objectives.
B. GUILTY PLE AS FOR INCARCERATIO N AND HABITUAL OFFENDER STATUS
Louisiana’s habitual-offender law requires judges to increase mandatory minimum sentences for
criminal defendants who have previously been convicted of felony offenses when requested by
the prosecutor.340 A criminal defendant who has been convicted of one or several previous felony
offenses faces longer prison sentences if the District Attorney decides to apply the habitual
offender law when the defendant takes a plea or when the defendant is sentenced. 341 It is within
the discretion of the District Attorney’s Office whether to charge the defendant as a habitual
offender.342 The Orleans Parish District Attorney’s Office’s previous use of the habitual offender law
was controversial, as highlighted in national343 and local344 media sources. It was widely reported
that the Orleans Parish District Attorney had previously used the habitual offender law in
sentencing more often than any other Louisiana Parish. Between January 2009 (when Cannizzaro
was first in office) and 2017, 345 Orleans Parish prosecutors charged people under the habitual
offender statute more than 2,600 times, compared to East Baton Rouge, which used the law 66
times during the same period.346 Cannizzaro's use of the habitual offender laws made national

Doleac, Jennifer L. “Study after Study Shows Ex-Prisoners Would be Better off without Intense Supervision,” Brookings
Inst. (07/02/2018) https://www.brookings.edu/blog/up-front/2018/07/02/study-after-study-shows-ex-prisoners-would-bebetter-off-without-intense-supervision/ (accessed 04/17/2019).
339 Leon Cannizzaro, Remarks at The Atlantic.
340 La. Stat. Ann. § 15:529.1.
341 La. Stat. Ann. § 15:529.1(D)(1)(b).
342 Id.
343 Reveal: 10 Years or Life, Ctr. for Investigative Reporting (Oct. 6, 2018), available at
https://www.revealnews.org/episodes/10-years-or-life; Andru Okun, Harry Moses of Guilty Until Proven Guilty, ANTIGRAVITY (Oct. 2018), http://www.antigravitymagazine.com/2018/10/director-qa-harry-moses-of-guilty-until-provenguilty/.
344 Eve Abrams, Habitual Offender Prosecutions down in New Orleans, The Lens, Nov. 29, 2018, available at
https://thelensnola.org/2018/11/29/habitual-offender-prosecutions-down-in-new-orleans/; Matt Sledge & John
Simerman, New Orleans DA, Criminal Court and Cops Make Budget Pitches to Council, New Orleans Advocate, Nov. 13,
2018, available at https://www.theadvocate.com/new_orleans/news/courts/article_ed110fa0-e78e-11e8-839daf0f2a46754f.html.
345 Reveal: 10 Years or Life, supra note 347.
346 Id.
338

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 headlines again when his office charged a criminal defendant as a habitual offender for stealing
$31 worth of candy, exposing them to a sentence of 20 years to life.347
With recent changes made to state law relating to the sentencing of habitual offenders, the
Orleans Parish District Attorney’s Office has used the habitual offender law in sentencing less than
it had before.348 In an analysis conducted by the Lens based on Department of Corrections data,
Orleans prosecutors used the statute as a sentencing enhancement in 63 felony convictions
between November 1, 2017 and October 28, 2018. 349 This use of the statute in sentencing
compares to 73 times used in Jefferson Parish and 76 times used on the North Shore.350 But Orleans
Parish still used the habitual offender law more than similarly sized East Baton Rouge Parish, where
the habitual offender law was used only once during the same period. 351 At a City Council hearing
in 2018, Cannizzaro said the DA’s office has used the statute in sentencing in about 6% of cases,
compared to 13% the previous year and 21% the year before that.352
However, as the Lens stated in its analysis, the decrease in the number of convictions under the
habitual offender statute “only tell(s) a fraction of the story in how prosecutors have used the
habitual-offender law.”353 With the vast majority of Orleans Parish cases ending in pleas, the larger
question is how often prosecutors use the threat of sentencing a defendant as a habitual offender
in their negotiations to obtain a plea.354
The Figure below indicates a slight decrease in the rate of defendants who pleaded guilty after
someone had referred to them as a “habitual offender,” “multiple bill,” “double,” “triple,” “quad,”
or “lifer,” from 16% in 2017 to 13% in 2018. Additionally, CWN found a slight decrease in the rate of
guilty pleas by defendants while they were incarcerated from 51% in 2017 to 48% in 2018.

Sarah Larimer, This Man is Accused of Candy Theft, THE WASHINGTON POST (Apr. 6, 2016),
https://www.washingtonpost.com/news/true-crime/wp/2016/04/06/this-man-is-accused-of-stealing-31-worth-of-candyunder-louisiana-law-he-could-spend-life-in-prison/?utm_term=.f976f8a5f3e5.
348 Eve Abrams, Habitual Offender Prosecutions down in New Orleans, The Lens, Nov. 29, 2018, available at
https://thelensnola.org/2018/11/29/habitual-offender-prosecutions-down-in-new-orleans/; Matt Sledge & John
Simerman, New Orleans DA, Criminal Court and Cops Make Budget Pitches to Council, New Orleans Advocate, Nov. 13,
2018, available at https://www.theadvocate.com/new_orleans/news/courts/article_ed110fa0-e78e-11e8-839daf0f2a46754f.html.
349 Id.
350 Id.
351 Id.
352 Matt Sledge, New Orleans DA, Criminal Court and Cops Make Budget Pitches to Council, THE LENS (Nov. 13, 2018),
https://thelensnola.org/2018/11/29/habitual-offender-prosecutions-down-in-new-orleans/.
353 Id. at 334.
354 Id. at 338.
347

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 n = 456 (2017), 487 (2018).

C. MARIJUANA CASES
In March 2016, the City of New Orleans passed a municipal ordinance that allowed the New
Orleans Police Department to issue a summons (and thereby not arrest and incarcerate the
individual) in certain marijuana cases and to require a fine instead of jail time. 355 When the
individual receives a summons, that person is required to go to Municipal Court to appear on the
misdemeanor offense of marijuana possession. 356 While many websites, particularly tourist or
marijuana enthusiast websites, touted the change in law as “decriminalization,”357 marijuana very
much remains illegal in New Orleans, and it is essential that the public be educated as to the
current status of the law.
In New Orleans, an individual may still be arrested (as opposed to receiving a summons) on a
marijuana offense if:
●
●

The individual stopped is under the age of 17 years old;358
The NOPD officer suspects the individual intends to distribute the marijuana; this
determination is made by the officer and must be approved by the officer’s supervisor;359

Kevin Litten, NOPD Marijuana Arrests Plunged to 1 Percent After Ordinance Change, Nola.com, Mar. 28, 2018, available
at https://www.nola.com/politics/2018/03/marijuana_ordinance_new_orlean.html.
356 New Orleans Criminal Code Sec. 54-505 Sec (g); NOPD Operations Manual, Affidavit and Summons, Chapter 41.8.
357 Marijuana Policy Project, La. Med. Marijuana Program Still not Functioning, https://www.mpp.org/states/louisiana/ (last
visited Mar. 1, 2019). See also Kush Tourism, Is Weed Legal in La.? La. Marijuana Laws, https://kushtourism.com/louisianamarijuana-information/ (last visited May 1, 2019).
358 Greg LaRose, New Orleans Softens Marijuana Laws Starting This Week, Nola.com (Jun. 20, 2016),
https://www.nola.com/crime/2016/06/new_orleans_softer_marijuana_p.html.
359 Michael Harrison, NOPD Interoffice Correspondence Memo to All Department Personnel, General Order #1030 (Jun. 1,
2016), “If the investigating officer believes sufficient facts or circumstances exist to indicate or substantiate that the offense
is other than simple possession (e.g. quantity of CDS in individualized packaging, unusual quantity of small denomination
currency, apparatus to weigh or measure, etc.) the officer shall contact his or her supervisor and explain the relevant facts
or circumstances. In the event the supervisor approves the officer shall charge appropriately in State Court with State
charges. The supervisor’s approval shall be documented in the NOPD Incident Report.”
355

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 ●
●

●
●
●
●
●
●
●
●
●

●

If the individual is found to be in possession of a synthetic cannabinoid and they have any
prior convictions for simple possession of a synthetic cannabinoid;360
If the marijuana possession occurred in: a school, a property used for school purposes, 2000
feet of a school, a school bus, property used for drug treatment, 2000 feet of property used
for drug treatment if a drug free zone sign is posted, a religious building property or within
2000 ft. of it if a drug free zone sign is posted, public housing authority property or within
2000 ft. of it if a drug free zone sign is posted, child day care center property or within 2000
ft. of it if a drug free zone sign is posted;361
If the individual does not possess identification;362
If the individual makes a statement that indicates an intent to disregard the summons or
refuses to sign the summons;363
If the individual acts in a violent or destructive manner or makes a statement indicating
that they intend to inflict injury to self or another or damage to property;364
If the individual has a criminal history of two or more felony convictions or five or more
felony or municipal arrests for any offense;365
Based on the circumstances, an officer determines that it is absolutely necessary to make
an arrest;366
If the individual is not in actual, constructive or shared possession of the marijuana; 367
If the marijuana is 2.5 pounds or more;368
The NOPD officer has reasonable grounds to believe the person will continue to possess
marijuana unless immediately arrested and booked;369
If the individual has a warrant for: any felony case, operation of a vehicle while
intoxicated, the illegal use or possession of a weapon, the use of force or violence, except
the crime of simple battery, the failure to pay a legal child support obligation, and all
domestic violence related crimes;370
If the individual has a Municipal Court INSTANTA subpoena or multiple traffic or municipal
warrants/attachments for failure to appear.371

Despite the many above-mentioned exceptions, NOPD has an affirmative policy encouraging
“the use of summons in lieu of custodial arrest when appropriate and when the safety of the public
is not threatened.”372 Court records indicate that in 2018, NOPD issued a summons in 85% of the
Id.
Id.
362 New Orleans Mun. Code § 54-28.
363 Id.
364 Id.
365 Id.
366 Id.
367 Id. at 345.
368 Id.
369 New Orleans Police Dept. Operations Manual Chapter: 41.8 Title: Affidavit & Summons (Non-traffic) Effective:
10/29/2017 Revised: 03/01/2018.
370 Id.
371 New Orleans Police Dept. Operations Manual Chapter: Chapter: 74.3.1 Failure to Appear - Summons In Lieu Of
Physical Arrest Effective: 01/14/2018.
372 Id. at 356. There has been a significant decrease in the number of marijuana arrests since the law has been put into
place. City Council examined data from 2011 to 2014 and found there were 5,000 fewer arrests and summonses, a 31%
decrease compared to the number of arrests and summonses from 2007 to 2010. The summons rate for African
360
361

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 2,871 total incidents involving marijuana possession. 373 Figure 22 below illustrates the racial
distribution of persons charged with possession of marijuana, according to data provided to CWN
by Municipal Court.

Source: Municipal and Traffic Court of New Orleans Clerk of Court. N = 393,292 (census population estimate of Orleans
Parish as of July 1, 2017), 2,437 (persons issued summons for marijuana possession), 434 (persons arrested for marijuana
possession).

In Figure 23 below, 39% (or 171) arrestees were charged with possession of marijuana plus
additional charges other than marijuana possession. Sixty-one percent (61% or 263) arrests were
charged with only marijuana possession. Of the 61% or 263 arrests for only marijuana possession,
214 of those arrests were charged under the municipal ordinance for Simple Possession of
Marijuana, and 49 of those arrests were charged under the state statute for possession of
marijuana, also known as Schedule I drugs.

Americans (69%) was roughly the same as for whites (68%) during the examined 2011 to 2014 time period. Greg LaRose,
New Orleans Softens Marijuana Laws Starting This Week, Nola.com (Jun. 20, 2016),
https://www.nola.com/crime/2016/06/new_orleans_softer_marijuana_p.html. 75% of those arrested in this 2011 to 2014
time period were African American. Kevin Litten, NOPD Marijuana Arrests Plunged to 1 Percent After Ordinance Change,
Nola.com, Mar. 28, 2018, available at https://www.nola.com/politics/2018/03/marijuana_ordinance_new_orlean.html.
373 Source: Mun. & Traffic Ct. of New Orleans Clerk of Ct. n = 2,437 (persons issued summons for marijuana possession), 434
(persons arrested for marijuana possession).

73

 Source: Municipal and Traffic Court of New Orleans Clerk of Court. n = 434.

RECOMMENDATION 10: The public and the tourism industry should educate themselves on the
marijuana laws in New Orleans and ensure public material such as websites provide the correct
information about when an individual is able to receive a summons for a New Orleans Municipal
Code marijuana violation and when an individual is not able to receive a summons. The tourism
industry and others should remove all references to marijuana being decriminalized in New
Orleans.
VIII. EFFICIENCY
It is essential when a not-for -profit monitors for efficiency that the not-for-profit examine the real
drivers of inefficiency. When judges, for example, are blamed for inefficiency or labelled
inefficient, CWN has observed judges use different court practices to drive case processing
efficiency-practices that may upend other parts of the criminal justice system such as public
safety, victim rights, or the defendant’s constitutional rights. For example, in 2018, CWN received
anecdotal reports of victims who were not permitted to make statements in cases or defendants
who were incarcerated for minor issues while out on bail, all purportedly for the sake of expediting
a case. Instead of placing the full blame for inefficiency on judges, CWN made it a priority in this
report to reveal the real drivers of inefficiency in the Orleans Parish Criminal Courts.
CWN has monitored courtroom efficiency for over 11 years. In fact, efficiency has been part of
CWN’s core mission from the onset of its program. For over 11 years, CWN has monitored whether
judges were late to court and the problems such delays cause for those who must wait for the
judge to start court. For almost as long, CWN has monitored the number of continuances
requested in court each day. A continuance is a postponement of a scheduled hearing, trial, or
other adjournment until a later date. 374 CWN volunteers collect not only the number of

374

La. Code Crim. Pro. § 708.

74

 continuances requested in a day, but also the court actor who requests the continuance and the
reason given.
The importance of this data cannot be underestimated. If the New Orleans Criminal Court actors
are going to ensure more efficiency in the courts, they must be informed as to what is really making
the court inefficient. All New Orleans Criminal Court actors (and not just judges) must examine the
aggregate data on delay and inefficiency. Judges are not the only actors responsible for
continuances and delays. In many instances, judges are powerless to stop the inefficiency. For
example, it is incumbent on the prosecution to ensure that an incarcerated defendant is on a jail
list to be produced for a criminal court appearance and incumbent upon the Orleans Parish
Sheriff’s Office (OPSO) to ensure the defendant is brought from the jail to court when the
defendant is in OPSO custody. However, both the court and the prosecution are incumbent upon
the OPSO to inform them of the jail in which an incarcerated defendant is located. The court or
the prosecution can do little to get a jailed defendant into court (the number one reason for
inefficiency according to CWN data in Figure 24) if OPSO has not informed the court or the
prosecution of the jail facility in which the defendant is located. Likewise, if the prosecution and
the defense attorney decide together, they will delay or continue a case (the fourth largest reason
for inefficiency according to CWN data in Figure 24), the law states that a judge is powerless to
stop this delay.375
CWN examined the 98 oldest active cases in Criminal District Court. These cases were instituted
from 2005 to 2015 and remained active throughout 2018. CWN’s findings are set forth in Figure 24
below: 34% of continuances occurred because the defendant was not brought to court when
scheduled; 16% were continuances requested by the State;376 in 15% of continuances, no reason
was provided in the minute entries; 11% were continuances requested by the defense; 377 another
11% were continuances on joint motion;378 7% were continuances requested by the Court;379 and
in 6%, the case was continued because the defendant appeared without counsel. The time
period of delays CWN tracked involved including delays of days to delays of months.

State v. Barnes, 72 So. 3d 938 (La. App. 4 Cir. 8/29/2011). This Court has previously found, in unpublished writ dispositions,
that it is an abuse of the trial court's discretion to deny a motion for continuance when both sides in a criminal case agree
to a continuance of trial; See also State v. Lee, 11–1176 (La. App. 4 Cir. 8/25/11); State v. Richardson, 09–0953 (La. App. 4
Cir. 7/20/09); State v. King, 11–0243 (La. App. 4 Cir. 2/18/11); State v. Terry, 11–0245 (La. App. 4 Cir. 2/18/11).
376 In 917 of these continuances, the minute entry in the docket merely said the case was continued by the State. In 29 of
these continuances, a law enforcement witness was unavailable. In 24 of these continuances, the Assistant District Attorney
(“ADA”) was unavailable. In 22 of these continuances, the ADA owed discovery to the defense. In 3 of these continuances,
the ADA was unprepared. In 2 of these continuances, a civilian witness for the prosecution was unavailable. In 1
continuance, the ADA had not requested the defendant to be brought from jail.
377 In 466 of these continuances, the minute entry in the docket merely said the case was continued by the defense. 80
continuances occurred because of a change in defense attorney. In 78 of these continuances, the defendant had been
released and did not return to court. 41 continuances occurred because the defense attorney was unavailable, and 7
continuances occurred because a witness for the defense was unavailable.
378 In 556 of these continuances, the minute entry in the docket merely said the case was continued by joint motion. In 47
continuances, the Court ruled the defendant incompetent, and in 35 continuances, the Court ruled the defendant
competent. 24 continuances occurred due to writs to the Louisiana Fourth Circuit Court of Appeal, and 17 continuances
occurred due to writs to the Supreme Court of Louisiana.
379 157 continuances occurred because the Court was closed. In 147 continuances, the Court was trying another case. In
94 of these continuances, the minute entry in the docket merely said the case was reset by the Court. In 76 of these
continuances, the case was transferred to another court.
375

75

 Source: Orleans Criminal District Court Clerk’s Office & Orleans Parish Sheriff’s Office Docket Master.
n = 98 (cases), 6,316 (case settings).

Figure 25 below further breaks down who was the responsible party who failed to bring an
incarcerated defendant to court, the most frequent reason for continuances. When the
defendant is in an incarceration facility under the jurisdiction of the Louisiana Department of
Corrections (“DOC”), then DOC must bring the defendant to court, but the District Attorney’s
Office must notify the DOC that the defendant needs to be brought to where the defendant’s
case is presiding. Where the defendant is in the Orleans Justice Center (“Jail”), the individual
courtrooms must notify the OPSO that they must bring the defendant to court. However, in many
circumstances, the court first requested OPSO to produce the incarcerated defendant when the
defendant was in DOC custody. Alternatively, in many circumstances, the district attorney filed a
writ to produce the incarcerated defendant from DOC Custody when the defendant was in
custody. In 57% of continuances, the Orleans Parish Sheriff’s Office was responsible for bringing the
defendant to court but did not. In 38% of continuances, the DOC was responsible for bringing the
defendant to court, and in 5% of continuances, the defendant was supposed to be transported
to court by the Eastern Louisiana Mental Health System. CWN found only one case (rounded down
to 0% in Figure 25 below) where the Assistant District Attorney did not notify the DOC to transport
the defendant after being ordered by the Court to file such a request. However, it is the case that
often the prosecution and the court were not notified by OPSO of the facility in which the
defendant was housed so neither the court nor the prosecution knew from which facility to
formally request the defendant be transported.

76

 Source: Orleans Criminal District Court Clerk’s Office and Orleans Parish Sheriff’s Office Docket Master.
n = 2,192 case settings.

Recommendation 11: Judges are not solely responsible for court inefficiency and the public
should educate themselves on this issue. The Orleans Parish Sheriff’s Office should ensure that
criminal defendants are brought to court. The Orleans Parish Sheriff’s Office should also ensure that
the court and the prosecution are properly notified as to whether an incarcerated defendant is
being held in the Orleans Justice Center or in another jail within the jurisdiction of the Department
of Corrections.
IX. ACKNOWLEDGEMENTS
CWN thanks its 2018 volunteers, interns, and donors, 380 who were generous with their time and
resources, and without whom this report would not have been possible. CWN thanks the New
CWN thanks its 2018 volunteers and donors, including the following donors: Sustainer ($50,000 and above) Open
Philanthropy, Public Welfare Foundation; Partners ($20,000 and above) Baptist Community Ministries, Eugenie Jones
Foundation, the Thomas Weinreich Fund; Leadership Circle ($5000-$19,999) Alliance for Safety and Justice, DE SHAW &
COMPANY INC, The Helis Foundation, Herb Block Foundation, Keller Family Foundation. RosaMary Foundation, William B.
Weiner Jr. Foundation, George H. Wilson; Benefactors ($2,500-$4,999) Business Council of New Orleans and the River
Region, Canal Barge Company, Inc., Donna and Paul Flower, Harrah’s Community Fund, The Kabacoff Family Foundation,
Louisiana Bar Foundation, National Council of Jewish Women, Peter T. Joseph Foundation; Sponsors ($1,500-$2,499) Adams
& Reese, Bland & Partners, Katherine and Robert Boh, Susan and Jimmy Gundlach, Charles (Gee Gee) Hargon, Jones
Walker LLP, Kiefer & Kiefer, Corey Kiper, Laitram, L.LC., Hope & Jimmy Meyer, Reily Foods Company, Seismic Data
Enterprises, LLC, Southern Poverty Law Center, Liz and Poco Sloss. Stone Pigman Walther Wittmann L.L.C.; Patrons ($500$1,499) AT&T, Gillis Ellis Baker, Morris Bart, LCC, Ralph Brennan Restaurant Group, Bruno & Bruno Foundation for Louisiana,
380

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 Orleans Police Department, the Louisiana Supreme Court, the Vera Institute of Justice, the Family
Justice Center, the Orleans Parish District Attorney’s Office, the Orleans Public Defenders, the
Criminal District Court Clerk of Court, the Municipal Court Judicial Administrator, the Orleans Parish
Criminal District Court Judicial Administrator, the Anti-Defamation League, the Southern Poverty
Law Center, the Louisiana American Civil Liberties Union, Civil Rights Corp, Silence not Violence,
the MacArthur Justice Center, the Fines and Fees Justice Center, Chief Judge Landrum Johnson,
Commissioner Jonathan Friedman, Judge Tracey Flemings-Davillier, Baton Rouge Police Chief
Murphy Paul, Assistant District Attorney Robert White, Dr. Arwen Podesta, Dr. George Singletary,
former US Attorney for the Eastern District Kenneth Polite, Attorney Laura Reeds, and countless
brave whistleblowers who chose to remain anonymous, for providing data, help, insight, research
(legal and otherwise) or advice for this report. CWN thanks Tulane law students Gerald Williams,
Julian Candilora and Ruixuan Zhuo for their legal research. CWN thanks the following Tulane
students for their help: Ryan Boden, Luke Hunter, Yinchen Liu, Anthony Papp, Abyselle Salinas,
Carly Schindler, Michael Svagdis, and Claire Wynne.

Lisa and Broderick Grubb, Hancock Whitney, Haynie Family Foundation, Sally and Jay Lapeyre, Patti and Robert Lapeyre,
Wayne Lee, Riess LeMieux, Liskow & Lewis, Stag Liuzza, Waldemar S. Nelson and Company, Inc., Roger H. Ogden
Development and Investment, Pan-American Life Insurance Group, Graham Ralston, Cathy and Rick Schroeder. Nia
Terezakis. Arthur Wisdom, Matthew Wisdom, Women for a Better Louisiana.

78