Orleans Parish criminal defendants often get shorted on a decision about whether police had enough evidence to
arrest them, according to the Center for Constitutional Rights. The New York-based nonprofit had law students monitor all 60 first appearances in the criminal court's magistrate section over a five-week period last spring. In 83 percent of those cases, it said, there was no spoken or written record of whether the magistrate judge or commissioner decided police had probable cause for the arrest. In 38 percent, it said, the magistrates did not appear to read the police summary of the arrest, and did not have it read aloud to them; in another 23 percent, they read or heard only part of it.
"In no instance was there ever any indication that any of the commissioners read the affidavits before taking the bench for First Appearances," said a friend-of-the-court brief filed Tuesday with the Louisiana Supreme Court As a result, argued the group's legal director, William P. Quigley, magistrates appear to be deciding bail and probable cause
without considering all the facts of the arrest.The brief was filed for Bruce Wallace of New Orleans, whose case
is to be heard Oct. 21 by the Louisiana Supreme Court. He had challenged a cocaine possession charge on grounds that he did not get a probable cause evaluation by Judge Gerard Hansen within the 48 hours required by the U.S. Supreme Court. The case eventually was thrown out on grounds that evidence of an improper search and seizure was suppressed - a ruling prosecutors have appealed, said Derwyn Bunton, head of the public defender's office. "The case is gone. The issue of the magistrate's action is what's on the table," he said. Hansen, the only elected judge who serves in magistrate court, said he cannot talk about Wallace's case because it is before the state Supreme Court. But he said the prosecutor always reads the entire police "gist" in his court sessions - and if the prosecutor fails to do so,the public defender speaks up to make sure it is read. He said the same thing likely happens during court sessions
overseen by the four appointed commissioners.The Orleans Parish Public Defenders' Office contends that Hansen
should have released Wallace without bail because he was brought to court a full day later than required. Public defender Thomas Nosewicz asked the high court to order the magistrate court to rule promptly on whether arrests are lawful, and to keep records of probable cause rulings. "Mr. Wallace deserves to have the law applied equally to him as
it would anywhere in the country," Bunton said.The appeal noted that the 4th Circuit Court of Appeals has ruled
that other magistrates erred by not releasing defendants on their own recognizance after failing to rule on probable cause within the two-day time limit. However, that court declined to hear Wallace's case. "An arrestee's first appearance is where the magistrate judge, among other tasks, sets bail, appoints counsel, determines whether
a warrantless arrest was made with probable cause and allows individuals to exercise their fundamental rights," Quigley said in a news release. "Instead, we found the courts rushed through first appearances, on average spending less than two minutes per case - this is a troubling indication of systemwide failure to uphold the U.S. Constitution."
Hansen said many cases involve simple marijuana possession charges that don't require much time. More complicated cases get more attention, he said. In a brief filed for the Louisiana Association of Criminal
Defense Lawyers, Edward King Alexander Jr. chastised several of the appointed commissioners who serve as magistrates, saying they have repeatedly misunderstood the Supreme Court decision requiring the 48-hour hearings.
The Center for Constitutional Rights said that in several cases,appointed commissioners refused to make a probable cause determination at first appearances, giving prosecutors 48 hours to gather and provide more information, "in plain violation of Supreme Court precedent."
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