From December 2019, a handcuffed man is led toward the New Orleans jail. (Michael Isaac Stein/The Lens)

Throughout the COVID-19 pandemic New Orleans criminal and municipal court judges continued to issue warrants to have defendants arrested for failing to appear for court dates — despite the increased health risks associated with being put in jail and the fact that there was often confusion about whether or not court was even open, according to a report released on Monday by the watchdog group Court Watch NOLA. 

“Judges did this during a health pandemic while issuing contradictory orders whether the court was closed or open, and with people oftentimes not knowing whether they even had a court date or not,” said Simone Levine, executive director of Court Watch NOLA, at a press conference on Monday. “This when the jail was experiencing COVID rates over 40 times the national average, and costing taxpayers $169 a day to house an incarcerated defendant.”

The group’s 2020 annual report found that between March 16, 2020 and the end of the year, 62 arrests were made on failure to appear warrants issued by judges in Magistrate and Criminal District Court court, where felony cases are handled. Twenty-nine percent were issued after the defendant failed to appear at arraignment — a defendant’s initial hearing in front of a judge after being officially charged with a crime —  the report found, while 69% were issued after they failed to appear for a subsequent hearing. 

Chief Judge Karen Herman issued the most failure to appear warrants, with 16. Neither Herman nor any of the other judges in Criminal District Court responded to a request for comment from The Lens on the report’s findings.

In Municipal Court, which handles lower level offenses, the judges actually came to an agreement on June 9, 2020, and issued an order, according to the report, that “prohibited a defendant from being incarcerated on a warrant for failure to appear.” But, they still went ahead and issued over 300 hundred attachments (the term used for a warrant in Municipal Court) between March 16, 2020, and the end of the year, Court Watch found. It is unclear how many of those resulted in arrests. 

While the number of attachments issued was only about 10 percent of the over 3,000 they issued the previous year during the same time period, the Court Watch report argues it was still too many. 

“It is egregious for a court to issue 314 warrants in 2020 during a health pandemic, violating their own judicial order, regardless of whether the judge had proof the defendant had been personally served with a subpoena for the court date or not,” the report reads. 

Municipal Court Chief Judge Sean Early said last week that he had been given a copy of the report, but had not had a chance to review it. He was unsure of why attachments were issued during that time, given the agreement from the judges that individuals shouldn’t be arrested for failure to appear, but said he thought judges may have felt it was necessary in some domestic violence cases. 

“The only thing I can think of off the top of my head —  domestic violence,” Early said. “You know, if people fail to show one vote of domestic violence or battery, then maybe perhaps some judges issued attachments. Again, that’s off the top of my head.”

Municipal Court judges and the City Attorney’s Office have been pushed by advocates and attorneys to clear the tens of thousands of outstanding warrants stemming from low-level offenses, which they argue can be a financial burden and safety risk for the city’s most vulnerable citizens. 

Given the backlog and the risks, Danny Engelberg, chief of trials for the Orleans Public Defenders Office, said he was disappointed that judges continued issuing warrants during the pandemic.

“We already have a problematic thing, especially in Municipal Court, that there’s this massive backlog of warrants, right?” he said. “And so we shouldn’t we shouldn’t be adding to that backlog. We should be going the other direction — getting rid of them.

‘Confusing, and frankly, terrifying’

The report argues that the shifting situation in the initial months of the pandemic made it more difficult than usual for defendants to know when and how they were supposed to show up for court. 

Both Criminal District Court and Municipal Court closed their doors for in person hearings on March 16, 2020. In Criminal District Court, some proceedings shifted to Zoom immediately — primarily for incarcerated defendants — and in June virtual hearings began for all defendants. 

But the combination of court closures, combined with a mix of in-person and Zoom proceedings, often left defendants confused, the report says. 

“Criminal District Court issued a total of fifteen different official court orders or statements informing the public whether to appear in-person for court or not, many orders contradicting the earlier order made a week or a month before,” the report reads. 

In Municipal Court, proceedings never went virtual. Instead, after being closed for 2 months, defendants were again expected to appear in person for hearings on June 1. The report notes that it was during one of “the worst spikes of the COVID pandemic.”

“Defendants could hardly be blamed for failing to appear in-person in court in the middle of a pandemic, when making a court appearance by Zoom was not an available option,” the report reads. 

Levine said that even many people who were working in the court system often had a hard time figuring out what was going on at the time. 

“It took us a very, very long time to get a consistent story out of the court between all of the different people that we spoke to as to when the court was open, when the court was closed, how subpoenas were being issued, or whether subpoenas were being delivered,” Levine said. “We sat back and said, ‘My goodness, if this is what stakeholders are understanding, how much more confusing and, frankly, terrifying was it for defendants to try to make the decision whether they should appear or not in court, and how to appear in court?’”

The report also notes that a city-run text message system used to notify defendants of upcoming court dates was disabled in late 2019 due to the cyberattack on City Hall computer systems, adding to the lack of clear information regarding court appearances. In Criminal District Court the system was down until August of 2020, and in Municipal Court it remains down, the report says.

Engelberg, with the public defenders, said that even aside from the pandemic, issuing warrants “should be the ultimate last resort” and only done “when there’s a real community safety need.”

“A warrant has really drastic consequences,” Engelberg said. He noted that it makes it more likely for individuals to have risky encounters with the police and that when people are picked up for warrants it is more likely that they will sit in jail without seeing a judge for extended periods of time.

“The system doesn’t really function well to catch people who are brought into custody on a warrant,” Engelberg said. “We’ve seen countless times where it takes people way over, you know, the required amount of time to bring someone to court. There are more than just a few anecdotal examples of people who get lost, and it takes a phone call from a relative to our office for that person even to be known to us or to the court that someone’s been sitting in jail on a warrant.”

He said that he thinks that in the courts there is a “growing understanding that we should be more careful and deliberate before issuing a warrant.”

“But we aren’t there yet,” he noted. 

Levine said that she hopes judges will strongly consider alternatives to issuing warrants — such as having the sheriff’s office issue subpoenas, or asking the defense attorney to get in touch with their clients. 

“If you can have the defense attorneys promise that the defendant is going to be appearing in court on the next court date, it’s a needless expense if you then issue a failure to appear warrant and have the defendant picked up, arrested, and incarcerated for you know, a day or two before they’re seen in court,” Levine said. 

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...