Criminal Justice
 

Watchdog group criticizes magistrate judge for setting bail for defendants who don’t have an attorney

Orleans Parish Magistrate Judge Harry Cantrell has routinely set bail for defendants who don’t have a lawyer present, which could violate their constitutional right to an attorney, according to a report on the city’s Magistrate Court released Wednesday.

The report by the watchdog group Court Watch NOLA goes on to accuse Cantrell of improperly interfering with public defenders in his courtroom by severely limiting how long they can speak with their clients.

Cantrell and the four magistrate commissioners who work below him are typically the first judges to deal with felony defendants in Orleans Parish Criminal District Court. They sign search and arrest warrants and preside over hearings to determine probable cause and set bail.

Court Watch’s report recommends changing how magistrate commissioners are appointed by Cantrell and the 12 Criminal District Court judges.

The watchdog group argues the selection process is open to conflicts of interest because judges are elected, and they often get campaign contributions from interested parties like bail bondsmen and defense attorneys.

Judges could end up appointing commissioners with ties to people who donated to the judges’ campaigns, Court Watch says. However, the group did not disclose any examples in which that has happened.

The report is based on the observations of 166 volunteers who attended trials and court hearings between May 2016 and May 2017.

They reported that Cantrell has frequently set bail for defendants who don’t have an attorney. Under the U.S. and state constitutions, defendants have a right to counsel throughout the judicial process, Court Watch says in the report.

This happened with defendants who were not eligible for a public defender but had not yet hired a private lawyer, according to Court Watch.

“How can the court remedy this constitutional rights deprivation?” the watchdog group wrote. “There is a simple solution” — public defenders.

The Orleans Public Defenders has offered to represent those defendants in initial hearings, called “first appearance” hearings. All four magistrate commissioners allow it, but not Cantrell, Court Watch wrote in the report.

Cantrell did not respond to requests for comment on the report.

It says the group’s volunteers have heard Cantrell say in court “that he has all the information he needs to determine bail and does not need to hear from an attorney on the matter.”

However, public defenders have successfully argued for lower bail in almost half of bond reviews this year, according to Court Watch.

“If some judges honor the right to counsel, while others do not, this makes for an uneven, haphazard type of justice, where constitutional rights are afforded depending on the judge in front of whom the defendant appears,” the report says.

Even when defendants were eligible for a public defender, Cantrell gave lawyers too little time to consult privately with their clients before the hearings, according to Court Watch.

Cantrell told the lawyers they had only a few minutes, at times as little as two minutes, to speak to their clients. Volunteers said Cantrell uses an hourglass, “notifying public defenders that when the sand empties out of the hourglass, that means that the time allotted for the attorney-client confidential conversation is over.”

At that point, Cantrell ordered a deputy sheriff to open the door of the booth where lawyers meet with defendants and tell the defendant to come back to the courtroom.

The report also urged reforms to the way magistrate commissioners are appointed, saying there are no state laws or court policies governing the process.

Magistrate commissioners, who work part-time and are paid $77,000 annually, often work nights and weekends.

“Applicants are simply directed to send a letter of interest and a resume to Human Services,” the report says. “This sharply contrasts with the 95-page manual published by the federal courts.”

A major concern, according to the report, is the potential that judges may select applicants who are connected to campaign contributors.

At a press conference Wednesday morning, Court Watch NOLA Director Simone Levine said most judges raise more than $150,000 for their elections.

Much of that comes from people with an interest in how commissioners rule on probable cause and bail. Levine said an analysis of campaign finance contributions found that all Criminal District Court judges accepted contributions from attorneys or bail bondsmen.

The Court Watch report says the court should develop ethical guidelines for appointments “so that conflicts of interest can be avoided.” Those rules should address what to do in the event of a potential conflict, such as applicants for commissioner who are campaign contributors or are connected to judges’ family members.

In other states, according to Court Watch, commissioners are appointed by independent panels or people outside the local criminal justice system, such as mayors, governors or leaders of the state bar association.

“If the public is not given assurances that the commissioner selection process is free from conflicts of interest, the public will have less confidence in the proceedings of Orleans Magistrate Court,” Court Watch wrote in the report.

The group also recommends the city continue to fund the court’s pretrial services program, which screens defendants to determine how likely they are to show up for their trials if they are released on bond.

Court Watch calls the program an evidence-based tool to determine proper bail amounts. The program, formerly run by the Vera Institute of Justice, was brought under the court’s control this year.

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