Criminal Law
From KatrinaLegalRelief
Prisoner and Fugitive Issues
If we have a client who is looking for a loved one who was incarcerated in New Orleans before Katrina, where do we look?
Call The Department of Corrections at 225-342-3998 or 225-342-5935 between 7:30 AM and 8 PM. (The other organization that was given a copy of the original list of where evacuees were relocated is LACDL [the Louisiana Association of Criminal Defense Lawyers]. But their list will not be as up to date as DOC. Their number is below.)
If you have a client who survived Katrina and has a horror story about what happened while they were in jail, what do you do?
The ACLU National Prison Project is currently gathering information regarding the treatment of those incarcerated in the New Orleans Parish Prison when the Hurricane struck. Human Rights Watch is also documenting abuses. Their contact numbers are below. There have been a number of newspaper accounts describing the ordeal that some of the prisoners went through as the water rose through the Orleans Parish Prison.
If someone evacuated from the Parish Prison was told by the judge that he or she can post bail to get out, where does your client bring the money if s/he wants to post bail or bond?
Post bond at the New Orleans Clerk of Court. The new number and location for the New Orleans Clerk of Court: Temporary Clerk of Court Address for New Orleans Parish
Kimberly Williams Butler, Clerk Of Court for New Orleans
1885 North 3rd Street
Baton Rouge, LA
Tel. 225-326 6771
If a client had a court date pending in New Orleans for sometime between the date Katrina hit and the present, what should you advise the client?
The client probably has not missed a court date because the court was suspended following Katrina. Before traveling to New Orleans, try to get up to the minute information from the New Orleans clerk’s office or the LACDL office (addresses posted below).
If I have a client that has an outstanding warrant in New Orleans and is thinking about turning himself in, what do I tell him or her about whether they will get a free lawyer when they go to New Orleans and whether their matter will be addressed in a timely manner? (Note that the Extradition Section below deals with the alternative, namely, what happens if your client does not turn herself in)
As of the writing of this Manual, the criminal justice system in New Orleans is overloaded and woefully behind in processing those awaiting trial.
Over seven thousand prisoners were transported from New Orleans and surrounding areas to other locations in the wake of the hurricane. Many of these were not convicted of any offense but were held awaiting trial. The charges ranged from serious ones to Municipal offenses, such as trespass or public drunkenness. They were brought to about 35 different locations within the state. The right to speedy trial was lifted. The LACDL has worked with other in-state attorneys to each evacuee in order to identify prisoners whose sentences already expired or who were charged with municipal offenses (very minor offenses). All of these interviews should have been completed by mid-September. An agreement was reached beforehand between defense lawyers and the Attorney General about releasing people who fit specific criteria. There is one parish in which those who fit the above criteria are being released in a timely manner – that is, Plaquemines Parish. For other parishes, it has all gone much slower than the lawyers anticipated. Some attorneys who have been to Louisiana report that some people have been held pre-trial longer than they could have been held if they had been convicted.
Thus, if your client were to return and be held in Louisiana, he may experience a much longer pre-incarceration period because of the evacuation than one would ordinarily expect, even for minor crimes.
Finding a lawyer to represent your client once he or she returns to Louisiana is another issue. It is not clear whether there will be sufficient number of lawyers to represent the indigent from New Orleans and surrounding parishes after the hurricane. Even before the storm, the Supreme Court of Louisiana found the funding of indigent defense in at least one Parish to be constitutionally inadequate. During the month following Katrina, there have been issues with regard to client visiting inmates of the evacuated parishes. All lawyers must now obtain pre-approval from the DOC before being allowed to visit inmates. Clients considering hiring out-of-state lawyers should be warned that approval to visit inmates has been particularly difficult for out-of-state lawyers after the Hurricane.
Have records been destroyed so the government will not know whether your clients are in default or not? Will the evidence be there to try your client?
This is important because so much depends upon records – from court files to criminal records to probation records.
There are reports of the OPP computer system being submerged for a lengthy period with data possibly obliterated. The answers also vary parish to parish but here’s a guide. In New Orleans, jail records have been recreated from lists taken from the buses and boats as people left the Parish Prison. The Department of Corrections print-out is purported to be over one thousand pages long. The court records from New Orleans parish are also expected to be available. Evidence rooms were badly damaged; the District Attorneys office for New Orleans has described evidence boxes floating in water where snakes swam. It is unclear how many cases will end up being dismissed as a result. In Jeffersion parish, records were not destroyed and the court will open in October 2005. Hence it is difficult to predict whether information important to your client’s case will be available or not. Lawyers may want to call LACDL for updates on particular locations.
In sum, clients who need advice about returning to New Orleans voluntarily to face criminal charges should understand that they will probably be held longer and receive more limited representation if they return before the system is repaired. In addition, some of this information may be useful in a creative motion to postpone extradition or permit release on bail if a warrant is sought against your client.
Extradition
If you are outside Louisiana and have a client who has an outstanding default warrant from before the hurricane in New Orleans, what advice do you have for him or her?
If a client decides not to turn himself or herself in to Louisiana on an outstanding default warrant, the client risks being charged as a fugitive from justice, a charge that initiates extradition proceedings. The U.S Constitution, art. IV, cl. 2 provides for delivery of persons who have been accused or convicted of a crime in one jurisdiction but who reside in another. See 18 U.S.C.A. § 3182 The fact that your client was evacuated from the demanding state would not be a defense because the fugitive from justice charge does not claim that the person has fled or intentionally failed to appear in the demanding state. It is just a mechanism for bringing someone to a place where charges are pending.
In order to be charged as a fugitive from justice, the demanding state (Louisiana) must forward an arrest warrant, bench warrant or indictment to the asylum state. The asylum state is the state where your client is located. There is a two step process involved. Step one: When your client is arraigned on the fugitive charge, your client may either demand an extradition hearing or waive formal proceedings. If there is no waiver, a hearing on the contested extradition is scheduled at a future date. Currently, there is overcrowding in Mississippi jails, so judges are scheduling hearings in a shorter time frame than the federal statute permits. Louisiana, the demanding state, must prepare and forward a duly signed and certified papers by the governor of Louisiana – the “warrant of rendition” – for that hearing. Although the hearing is a type of habeas corpus proceeding, there are restrictions about what can be litigated in the asylum courts.
Extradition is a “summary procedure,” in which the asylum state court “may do no more than ascertain whether the requisites of the Extradition Act have been met.” The court must order return to the demanding state upon a finding that the fugitive fits the following criteria:
- Identity. Client is the person named in the requisition
- Affidavit or Indictment. Client is substantially charged with a crime in the demanding state.
- Fugitive from Louisiana. That client was in the demanding state at the time the offense was committed.
- Governor’s Papers. The paperwork is properly executed.
A finding that Louisiana has met its prima facie case may be founded on the paperwork itself, based on duly executed governor’s papers. The demanding state has no specific burden of proof; it must only present evidence that is “satisfactory” to the court. To overcome the prima facie case created by a properly certified requisition, the fugitive must produce clear and convincing evidence of the defense. The rules of evidence do not apply.
The fact that your client is innocent or may be innocent of the Louisiana crime is not relevant to the extradition proceedings except as it bears on the identity issue named above. Defenses for extradition are only those that disprove the government’s burden. After the hearing, once the judge rules against your client, agents from Louisiana should arrive to transport your client within thirty days under federal law, but Mississippi law holds that judges are not required to dismiss the case if the demanding state does not arrive in time.
By waiving formal proceedings, the client is saying in essence, okay, come get me. Once the client waives, the demanding state must show up to transport your client within thirty days. Otherwise, he should be released. But even if the case is fugitive charge is dismissed because the demanding state does not provide necessary paperwork or send its agent, the process may be repeated. Theoretically, Louisiana could forward another copy of the arrest warrant, bench warrant or indictment to the asylum state unless the client travels to Louisiana on his or her own to address the criminal matter there.
Katrina’s financial impact on Louisiana may effect Louisiana’s management of extradition proceedings. It is possible that Louisiana may not be able to file timely warrants or find the resources to pay for its officials to travel across state lines to take possession of your client. In addition, a state such as Mississippi would require Louisiana to pay for the costs and expenses that are consequent to a fugitive arrest. These are all considerations as clients decide whether to travel to Louisiana to turn themselves in or stay put and risk extradition proceedings.
FAQ
May your client be released pending the governor’s warrant if he refuses to waive rendition?
Answer: Yes. In Mississippi, a judge may release your client on bail if the client contests the extradition and requests a hearing. However, once the governor issues his certified warrant of rendition, the defendant must be returned to custody.
May your client be released if he waives rendition?
Answer: Generally judges do not release defendants once they waive rendition since the demanding state is told they may come get the defendant and s/he is available to be transported back, but it is not prohibited. However, given the overcrowding situation in Mississippi jails at this time, judges are releasing clients if Louisiana does not arrange transportation within a short period. According to one Mississippi public defender, judges were releasing his clients forthwith if Mississippi failed to respond to the attorney’s faxed waiver of rendition signed by his client.
What should we tell our client who doesn’t yet face extradition about the likelihood of there being an extradition case?
Answer: It is important to try to learn about the state of criminal records in Louisiana. See the discussion about that above.
Should we raise with the Mississippi court the situation for prisoners in Louisiana?
Answer: Yes. It helps explain why your client should not have been expected to return to Louisiana on his own making it more likely that the judge will release your client.
Contact Information
LEGAL RESOURCES FOR CRIMINAL DEFENSE ATTORNEYS & FAMILY MEMBERS OF INCARCERATED PERSONS
The Department of Corrections
(To find where an inmate from the Parish Prison is being housed)
225-342-3998 or 225-342-5935 between 7:30 AM and 8 PM.
ACLU National Prison Project
915 15th St. NW 7th Floor
Washington DC 20005
(202) 393-4930
Louisiana Association of Criminal Defense Lawyers (LACDL)
(To find a private lawyer or to get more information).
LACDL
P.O. Box 82531
Baton Rouge, LA 70884
Phone (225) 767-7640
Fax (225) 767-7648
http://www.lacdl.org/
Southern Center For Human Rights
http://www.schr.org/
83 Poplar Street, N.W., Atlanta, GA 30303-2122
Telephone (404) 688-1202 Fax (404) 688-9440
American Bar Association Hotline
Louisiana 1-800 310-7029
Mississippi 1-866-255-4495
Clerk of Court Address for New Orleans Parish - Temporary
Kimberly Willikams ?? Butler, Clerk Of Court for New Orleans
1885 North 3rd Street
Baton Rouge, LA
Tel. 225-326 6771
Information about Louisiana may also be culled from the local newspaper The Advocate that has a listing of post-Katrina information http://www.2theadvocate.com/katrinasitemap.shtml
STATE & LOCAL OFFICES
Louisiana Parish Emergency Preparedness Offices: This website contains a link to all of the Preparedness offices and locations. http://www.loep.state.la.us/linkpages/parishpa.htm
Parish Homeland Security & Emergency Preparedness: This webpage contains all of the names and contacts numbers. http://www.loep.state.la.us/parish/parishoepnumbers.htm
Louisiana Law Enforcement Agencies: This website has a list of all of the law enforcement agencies in Louisiana as well as there contact info. http://crime.about.com/od/agencies/a/agencies_la.htm
Louisiana Attorney General 1 800 351-4889 www.ag.state.la.us
Mississippi Attorney General 601-359-3680 or 1-800 281-4418 www.ago.state.ms.us
