New Orleans Prosecutors Routinely Violate Defendants’ Right to Counsel to Keep Them in Jail

From the start, the murder that William Bonham was charged with looked like a case of self-defense.

Bonham was arrested for the stabbing death of his friend Kent “Frenchy” Brouillette in December 2015. The whole thing had started several months earlier, when Bonham, a musician who played gigs in New Orleans’s French Quarter, had $25,000 worth of instruments and equipment stolen from his room in a tenement house where both he and Brouillette lived. He reported the theft to police, but the cop assigned to the case was uninterested, suggesting that the situation sounded like a civil matter. Undeterred, Bonham did his own investigation and determined that others in the house, including Brouillette, were responsible. According to court records, Brouillette told Bonham to drop the matter or he would kill him.

Bonham had reason to take Brouillette’s threat seriously; the 79-year-old was a legendary figure in the city, known as a pimp and a fixer for longtime New Orleans mob boss Carlos Marcello. He’d even written a book with a local author bragging about his life of crime.

Bonham sent a text to the cop assigned to the case relating the death threat. (In court, the cop would say he didn’t believe Bonham so he didn’t act on the message.) Since the theft, Bonham had been staying with Brouillette in his room at the flophouse, and thinking Brouillette was out, Bonham went back to gather his things. But Brouillette was there, and he had a knife. A struggle ensued and Bonham ended up with the weapon, inflicting what he would later learn was a fatal wound before fleeing the premises.

When Bonham was brought before an Orleans Parish magistrate judge to have his bail set on the murder charge, his attorneys, Graham Bosworth and Autumn Town, argued that the case was obviously self-defense. The magistrate seemed to agree; Bosworth said the judge was inclined to set a bond as opposed to releasing Bonham on his own recognizance — after all, someone was dead — but cautioned the prosecutor to consider carefully whether they actually wanted to seek a murder conviction. Bonham’s bond was set at $500,000.

It was a hefty sum — and would require more than $50,000 to get Bonham out while he awaited the resolution of the case — but there was a possibility that his family could come up with the money. They didn’t get the chance. While Bonham sat in jail, the state took the case to a grand jury, which indicted Bonham for murder. Then, without notifying Bonham or his lawyers, the prosecutor took the indictment to a district judge, arguing that Bonham’s bond should be increased — and it was, to $1.25 million.

That increase was a violation of Bonham’s constitutional rights. According to a new report from Court Watch NOLA, which monitors court proceedings in New Orleans, the so-called return-on-indictment process that led to Bonham’s bail being hiked so drastically — without him or his lawyers being notified or present to argue against the increase — was a clear violation of the Sixth Amendment right to counsel, which guarantees representation during any “critical stage” of a prosecution. Moreover, says Derwyn Bunton, the chief public defender in Orleans Parish, the practice of prosecutors and judges convening alone to make an important decision about a case — an ex parte communication, where defense counsel isn’t privy to the meeting — is also a violation of the constitutional guarantee of due process. “The judge generally simply agrees with whatever the DA announces ought to be bail,” Bunton said. “That’s the ordinary injustice that happens all the time here with how indictments come out and how bond is associated with those indictments.”

According to the Court Watch report, in 2018, 2 percent of the cases moving through the criminal district court system in New Orleans were subject to a return on indictment, for a total of 151 affected cases.

And at least one veteran criminal defense attorney in the city, Gary Wainwright, says the practice has been going on for decades. “It’s very brutish here,” he said.

Gaming the System

For the most part, the pretrial bonding process is supposed to work like this: Individuals arrested for a felony offense are brought before the Orleans Parish magistrate court, where a judge will consider the circumstances of the charges and hear arguments from counsel on whether or how high to set a bond. Ostensibly, a bail bond (including non-financial conditions of release) should employ the least restrictive means to ensure that a defendant shows up for court dates and will not be rearrested on any new charges in the interim. The court is supposed to take into account any individual risk factors and is not supposed to set a bond that simply penalizes a person for being poor. If the bond conditions are met, the person is released to await trial; if they can’t meet the conditions, they’ll wait in jail.

In Louisiana, formal charges can be filed in writing by the prosecutor — called a bill of information — or taken to a grand jury for consideration. In cases where the charge could lead to life in prison or the death penalty, the prosecutor is required to take the case to a grand jury. When the grand jury determines that charges should be brought — known as a true bill of indictment — the results must be filed in open court, known as the return on indictment.

While grand jury proceedings are confidential, the return-on-indictment process is not. At this point, the prosecutor will often ask for bail to be increased. The problem, according to Court Watch NOLA, is that in these circumstances, prosecutors routinely fail to notify the defense — denying them the opportunity to argue against any increase in bail, a violation of due process and the right to counsel.

Court Watch NOLA works with whistleblowers and employs a fleet of lay volunteers who monitor court proceedings, taking notes on bright yellow clipboards. Those notes are turned into aggregate data about the system, which is used to ferret out constitutional violations. A whistleblower tipped off the group about violations during the return-on-indictment process. Digging deeper, they realized that court watchers had seen the process in action, says Simone Levine, the group’s executive director. “It is hard for court watchers to determine what is a constitutional rights violation,” she said. “But in this scenario, it is very clear because either you have an attorney or you don’t.”

Of the 151 cases subject to the return-on-indictment process last year, the average bail set by the magistrate — who also considered arguments from the defense — was $165,103. After prosecutors returned the indictment to a criminal district judge — who only heard arguments from the state — that bail amount increased by an average of $952,368. Court Watch did not find a single case in which the defense had been notified that the indictment would be returned. Where defense attorneys later took the issue back to the court to protest the bail hike, the amount was dropped by an average of $64,037 for a final bail amount that averaged just over $1 million — a far cry from the original bond.

The process is unfair and illegal, says Wainwright, who has been practicing criminal law in New Orleans for 30 years. He recalled a client whose bail was initially set at $60,000 and whose family scraped together enough money before the prosecutor took the case to the grand jury and secured an indictment. When Wainwright and his client returned to court for their next hearing, the prosecutor announced that Wainwright’s client should be arrested because during the return on indictment, a judge had hiked the client’s bail to $250,000. The irony, Wainwright noted, was that if the true purpose of bail is to assure a defendant’s presence in court, it had already worked. His client was there, only to face re-arrest — but not because the client had done anything to deserve it. “What you’re actually having is a proceeding of questionable legality, because what you’re having is this prosecutor engaging in an ex parte hearing with the judge,” Wainwright said. “The DA is gaming the system.”

In an email, a spokesperson for Orleans Parish District Attorney Leon Cannizzaro did not respond directly to questions about the return-on-indictment process. Instead, he wrote that Court Watch NOLA has an “anti-law enforcement agenda,” and that the group’s annual reports are “propaganda.” The DA’s office, he wrote, does not comment on the “false assertions” contained in those reports.

De Facto Detention

The return-on-indictment process is not the only problem with bonding practices in New Orleans. In 2017, Civil Rights Corps and the Roderick and Solange MacArthur Justice Center filed a federal class-action lawsuit arguing, in part, that Orleans Parish Magistrate Judge Harry Cantrell arbitrarily set high bail amounts without considering less restrictive conditions of release or a person’s ability to pay the bond. In August 2018, a federal judge agreed. “The record indicates that Judge Cantrell’s bail procedures have not provided notice of the importance of the issue of the criminal defendant’s ability to pay, inquiry into the ability to pay, findings on the record regarding ability to pay and consideration of alternative conditions of release, or application of a legal standard in the determination of the necessity of pretrial detention,” Judge Eldon Fallon wrote. “Accordingly, these procedures violate plaintiff’s procedural due process rights.”

Although Fallon’s judgment outlined what Cantrell needed to do to get right with the law, MacArthur Justice Center attorney Eric Foley says there is reason to believe that Cantrell is not complying. “In essence, his practice really hasn’t changed,” Foley said. “He tells people he’s going to consider their finances and income, but … he doesn’t actually ask any of these questions or make findings on the record. That was a really important part of the opinion — that these findings be put on the record — and there’s really none of that happening.”

The parties are in discussion, Foley said, and a motion for injunctive relief is pending.

Not that any of this is particularly surprising. Louisiana long held the dubious honor of being the incarceration capital of the world (it was only recently beat out by Oklahoma), and several years ago, Orleans Parish had the highest per capita rate of people exonerated of a wrongful conviction among counties with more than 300,000 residents.

It is the specter of wrongful conviction that troubles Levine about the illegal return-on-indictment process. “This is a solid example of one of the factors that could lead to wrongful convictions,” she said. “When you look at the studies about people pleading guilty because they’re incarcerated and not necessarily because they’re guilty, and then you look to see why someone might be incarcerated and not able to be released, [it is] the fact that they do not have a defense attorney at a hearing that so clearly requires a defense attorney to be present for the exact reason of warding off wrongful convictions, so a defense attorney can actually talk about the weaknesses and strengths of a case. If the defense attorney is not there, they really don’t have that option.”

Colin Doyle, a staff attorney with the Harvard Law School Criminal Justice Policy Program who works on bail and pretrial reforms, said that when he heard about the return-on-indictment process in New Orleans, he was stunned. “It’s brazen,” he said, “a pretty creative constitutional violation.” Still, it didn’t entirely shock him, he said, because across the country, the pretrial system is rife with problems — including the lack of counsel and exorbitant bonds. But the fact that bonds are being increased in violation of constitutional protections during post-indictment hearings is a new one for Doyle. “The staggering amount of these bail increases [makes it] just so obvious that it is a switch from any kind of meaningful release mechanism to de facto detention.”

He notes that for people who have already been released, as in the example of Wainwright’s client, the practice is particularly egregious. “I think everyone’s jaw should drop and hit the floor … that there is a hearing that is happening, post-indictment, in which someone’s conditions of release are changed, and then they’re asking immediately for … that person’s arrest for not complying with conditions that they didn’t have notice of,” he said. “That’s unconscionable.”

Levine says that not everyone in the courthouse is comfortable with the practice, including the parish’s chief judge, Keva Landrum-Johnson, who has signaled in court and to her colleagues on the bench that the practice should end.

Three Years of Insanity

With his bond increased to nearly triple the original amount, there was no way William Bonham was going to be released before the case against him for the murder of Frenchy Brouillette went to trial. In fact, the case would drag on for three years. “Of course we went back in to court and argued for a reduction in bail,” Bosworth said. “But once that $1.25 million bail was set, it became our burden to convince the judge that bail should be reduced. But, unfortunately, once the bell has been rung, the judge is unlikely to un-ring it and say, ‘My bail setting was a mistake.’”

The case was frustrating for Bosworth and Town as the years ticked by and prosecutors repeatedly failed to turn over relevant evidence that would help them to prove the murder was self-defense — including a police report that described how Brouillette had previously attacked Bonham, hitting him over the head with a vodka bottle. “It was three years of just insanity,” said Bosworth, “of withheld evidence, or turning over false evidence, or refusing to turn over additional evidence. It was unlike anything I’ve ever experienced, and I’ve been doing this for 15 years.”

In the end, the case resolved itself with a plea deal for time that Bonham had mostly already served while awaiting trial. He was finally released earlier this year.

Bonham’s case “is a perfect example of why the return-of-indictment bond setting has been such a bad idea,” Bosworth said. At the first hearing, “we were able to present evidence and argument … that Willie acted in self-defense, and that the DA’s office was overreaching. A magistrate was able to hear this testimony and these arguments and make a decision on bail based on firsthand knowledge of the evidence.” But the system then allowed the district attorney to do an end run around the defense, taking the case to “a secret proceeding” that allowed them to “present whatever version of the facts that they want,” secure a “quick indictment,” and run back to a district judge to inflate the bond “so high that Willie will never get out of jail,” he continued.

“Without any sort of hearing, without us being involved, without any sort of notice, his bond is reset at $1.25 million — meaning that he’s never going to get out. There was no opportunity to be heard, it was just, bam,” Bosworth said. “Three years in jail when the magistrate was correct from the jump that the case appeared to be self-defense.”