Orleans Parish Sheriff Marlin Gusman told a jury today that he was not to blame for failing to release uncharged inmates from his jails during the aftermath of Hurricane Katrina.
Instead, the sheriff argued that it was up to Municipal Court judges to order the release of his inmates, and nobody ever told him to do anything with them amid the chaos of Hurricane Katrina.
Gusman appeared in U.S. District Court this morning for the second time in as many days to defend his office against a civil-rights lawsuit by two Ohio men who spent almost six weeks in custody after Katrina, despite never being charged with a crime.
The men say they were falsely arrested by New Orleans police for public intoxication in the French Quarter at 5 a.m. on Aug. 27, 2005, two days before Katrina struck.
Teacher Paul Kunkel and volleyball official Robie Waganfeald expected to be booked and released by the Sheriff’s Office, but they were caught in a bureaucratic maelstrom spawned by the storm. Both men were eventually released in early October.
Before the men were moved to other prisons around the state, Kunkel was locked in a cell with four other men for three and a half days without food, water or a functioning bathroom. Waganfeald was moved from a first-floor holding cell to a gymnasium on the second floor, with over 100 other prisoners, again, without food, water, or a functioning bathroom.
Both men thought Gusman’s deputies had abandoned them, leaving them to die in the jail.
Gusman testified today that his men tried to evacuate the inmates to 38 facilities around the state as quickly as they could. He took criticism, he said, for evacuating inmates before sheriff’s deputies and their families, and neighbors of the jail.
“There were several people that were upset with me because I wasn’t moving them to an evacuation point, and I told them look, this is our primary responsibility,” Gusman testified. “To get the inmates out. They’re not able to walk around free, like you are.”
Gusman blamed Katrina when he was asked why Waganfeald and Kunkel weren’t given a hearing to establish probable cause for their arrest within 48 hours, the constitutional limit established by a 1991 Supreme Court case.
“We were unable to do that because of the grave calamity that had struck our city,” Gusman said. “My understanding of the case is that there is an exception when an unforeseen calamity renders that first appearance unable to happen.
“I certainly didn’t anticipate everything that was going to happen with Hurricane Katrina,” Gusman continued. “But what did happen with the water rising, it was certainly a grave emergency.”
Attorneys for Waganfeald and Kunkel argued in court that the sheriff, as an elected official, has the power to parole inmates without a court order, under Title 15 of state law.
“It’s something that I’ve never done,” Gusman said. “My responsibility is to make defendants available to trial.”
An attorney for the Ohio men wasn’t swayed.
“I understand that you think that’s your responsibility,” Brett Prendergast said. “I think the laws are going to establish what your responsibility actually is.”
The men also allege that they were denied a phone call until Oct. 7 because the sheriff’s phones were down. But Gusman told the jury today he’d never been told that the phones weren’t working, and that he was surprised to hear it.
“My understanding is the phones were working,” Gusman said. “So I don’t have any knowledge of them not working.”
If the sheriff had been told that the phones weren’t working, he said, “I would have done whatever I could.”
Asked whether he might have provided cell phones to inmates to call their families or attorneys, for example, Gusman said the Saturday and Sunday before the hurricane struck were very busy. “So I wasn’t going to be able to bring a lawyer down and ask everyone about their business.”
Gusman said the attorneys for the plaintiff were asking him questions based on “a world of pretend and make believe.”
The jury will begin deliberations in the case Thursday.