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Following Foti 

Sheriff Charles Foti wants to be the state's chief legal officer, but critics say the jailer's office has had trouble following the law.

For nearly 30 years, Orleans Parish Criminal Sheriff Charles Foti has been the city's elected jailer. Today, his archipelago of jails and prisons (known under the rubric of "Orleans Parish Prison") holds some 7,000 inmates and detainees, one of the largest prison populations in the country.

Now, Foti wants to be Louisiana's Attorney General, the chief legal officer for the state. The "General" has more than 500 state employees and the power to institute, prosecute or intervene in a civil action in state courts. And the AG may assist in the prosecution of any criminal case. The Attorney General also acts as defense attorney for the state Department of Public Safety & Corrections, which operates the state correctional facilities for adults and juveniles. Foti, who once declined former Gov. Buddy Roemer's offer to run the state corrections department, is campaigning for the Attorney General's job under the bold campaign slogan, "Nobody works harder to change the way government works."

With qualifying for the Oct. 4 primary election only two weeks away, Foti has more than $1 million in campaign funds. He enjoys support from fellow Democratic stalwarts and other powerful sheriffs around the state. And he arguably has momentum over announced GOP candidate Suzanne Haik Terrell, the outgoing state elections commissioner who formerly served on the New Orleans City Council, as well as Democrat Al Donovan, former executive counsel to former Gov. Edwin Edwards.

But Foti also has a small but vocal minority of critics.

Civil rights lawyers who have battled Foti in the courts give the sheriff high marks for his political and public relations skills and for reforming the "dungeon" he inherited when he first took office on April 1, 1974. Attorneys Mary Howell and Sam Dalton, for example, say the sheriff deserves credit for sharply reducing incidences of prison rape and suicide over his long tenure -- key indicators of effective prison management that Foti himself does not tout publicly. In addition, mass escapes -- a nightmare for a prison system in the heart of the city -- have become a rarity.

But Foti -- himself a lawyer -- scores poorly among his legal critics when it comes to following federal court orders and resolving chronic problems at the jail, including:

· illegal strip searches of persons arrested on traffic charges and other minor offenses, despite a federal consent decree and longstanding federal court order that banned the practice -- an issue that arose from the 1992 New Orleans Police Department (NOPD) arrest of Mrs. Jack Kelly, a Connecticut tourist;

· inadequate communications services for deaf inmates, an area of concern that has persisted for 20 years despite two federal consent decrees during Foti's tenure as sheriff;

· disputes between his deputies and New Orleans police over responsibility for prisoners;

· and overall jail conditions, including medical care.

Later this month, a federal judge will hear civil rights lawyers argue that Foti's office has illegally strip-searched some 6,000 arrested persons, in violation of a federal consent decree and long-standing federal law on the procedure.

In the wake of a sensational escape July 17 that resulted in a prisoner's suicide and changes to inmate visiting protocol at OPP, Foti initially agreed to an interview for this story. But after seeing sample questions, Foti cancelled the meeting. Campaign spokesperson Allan Katz cited campaign fund-raising opportunities and the demands of the statewide campaign as reasons for canceling. Attempts to reschedule were unsuccessful, though Foti granted interviews to other media last week.

Meanwhile, attorneys Howell and Dalton have asked a federal judge to hold Foti in contempt of a 2002 consent decree banning the strip-searches of persons arrested for minor offense who have not appeared in court.

"They (Foti's office) admit to more than 6,000 people being strip-searched in violation of the consent decree," Howell says.

U.S. Magistrate Judge Alma Chasez has scheduled a hearing for 1:30 p.m. Aug. 27 to determine the scope of the alleged violations, how to prevent recurring violations, and to determine appropriate punishment, if any, Howell says.

The contempt hearing stems from the April 26, 2003, jailing of Tony Buchen, who was arrested by NOPD on charges of DWI and reckless operation of a vehicle. Buchen and a group of males arrested for minor offenses were then strip-searched and made to stand naked in front of each other and male deputies. A prisoner entered the area and said, "I smell some bare ass."

"I felt really embarrassed to have to strip naked in front of all of those people," Buchen said in a sworn affidavit. "I couldn't believe this was happening. I also felt embarrassed for the other people who were in there with me." Buchen was ultimately allowed to change back into his clothes and was released some 12 hours after his bond had been posted.

In a letter dated May 15, 2003, to Foti attorney John Weeks, Howell said the strip-search of Buchen violated the consent decree of 2002. In an extraordinary written reply, the sheriff's attorney said he "substantially confirmed" Buchen's account, except for the comments Buchen attributed to a prisoner.

"I have also learned, unfortunately, that what occurred is not unusual," Weeks said, in the same letter, filed in court records.

Foti's attorney candidly stated that sheriff's personnel at the Templeman III jail "were not instructed in implementing the new policies required" by the consent decree. "I recognize the practice complained of is a violation of the supplemental consent decree whenever it is performed on an arrestee for a minor offense who has not yet been to court," Weeks wrote. "After we had the opportunity to discuss it with the sheriff, he stopped the practice at Templeman immediately, effective May 26, 2003."

Weeks continued: "I am at a loss to understand how the practice could have continued for nearly a year after the entry of the supplemental consent decree (of May 20, 2002)." Weeks further noted that the strip-search went undetected by the court-ordered monthly monitoring reports.

The 2002 consent decree follows a 1996 Fifth Circuit decision of the suit filed by Connecticut tourist Kelly against Foti, prohibiting the strip-search and visual body cavity searches of arrested persons who have not appeared in court. In 2001, however, Foti acknowledged that strip searches were still a "blanket policy" for all persons admitted into the general population of the jail, including persons with minor offenses.

In June of this year, attorneys Howell and Dalton filed affidavits from people who had been arrested for minor offenses and strip-searched, saying they felt humiliated by the process. Among them is a female employee of NOPD. She was arrested last year and charged with contempt of court for failing to appear in small claims court, regarding a dispute with her former landlord. She was booked into Central Lock-Up.

"While I was in Central Lock-Up, I saw a deputy knock a man out cold. I couldn't believe it," the NOPD employee wrote. "He hit the man and he fell on the concrete floor. The man was just talking and the deputy punched him. The deputy then picked the man up and then dragged him to the back. I was very afraid for my own safety while I was in that jail. It seemed like anything could happen."

Later, the woman said she and other female detainees were ordered to undress in the middle of a room in view of other female deputies and inmates. "I felt very degraded by this experience," the police employee wrote in her affidavit. "It took something away from me. It made me feel dirty and ashamed. The way the inmates were looking at me made me feel dirty and ashamed."

The employee said a high school girl who had been booked with excessive tardiness was crying throughout the strip-search procedure. "I was trying to console her," the employee wrote. "I was able to hold off crying until later."

The police employee says she has been anxious and has had trouble sleeping since her arrest, more than 18 months ago. "Now, whenever I see sheriff's deputies, I'm afraid," she says. Her complaint has been made part of the consent decree named for Greta Casenave, a mother who was strip-searched by Foti's deputies after she was arrested by NOPD in 1999 for driving too slowly.

"The tragedy of this lawsuit is the strip searches should never have happened," attorney Howell says. She and Dalton say the law has been clear on strip searches since Kelly v. Foti, when the U.S. Fifth Circuit Court of Appeal ruled in 1996 that Foti's expressed security precautions did not justify that procedure.

"When the courts rule, those rulings were supposed to be followed and it looks to us like they were ignored," Howell says.

Dalton and Howell said an old order by U.S. District Judge Ginger Berrigan in the Kelly case should have made it clear to Foti that the practice should stop. "But there is no paper trail at his office so there is no accountability," Howell says. "There is no paper issued by the sheriff that says, 'Stop doing this.'"

Both Howell and Dalton are veteran civil rights lawyers who remember what the parish jail was like before Foti took office in 1974. They say Foti deserves credit for cleaning up the facility. "It was a hellhole," Howell says. "A dungeon," Dalton adds.

"You have to take the long view," Howell says. "He has been innovative. But ... we continue to see some chronic problems." For examples, she and other attorneys cite poor medical care, long-standing complaints of verbal and physical abuse by Foti's deputies, and a lengthy release process that is unequaled by other jails and prisons.

"When you are looking at Foti, you have to ask, have there been significant changes since he became sheriff? Yes. Are there also chronic problems? Yes. The problem with Foti is the problems never seem to be resolved. You search in vain for the follow-up and the mechanism that will make sure the problem stays fixed. One of the main problems over there is nothing is ever over."

While Foti insists his jail operations meet or exceed standards set by the American Correctional Association and other organizations, Howell, Dalton and other civil rights lawyers say the sheriff runs "a closed shop."

"He never has had an ombudsman or an independent monitor," says Howell, who has advocated a similar mechanism for the NOPD. In past interviews, Foti has said he is accountable to the voters. He also gets a budget for housing city prisoners from the City Council, and the sheriff submits fiscal reports to the state Legislative Auditor.

"Another problem is that Foti's deputies treat visitors (including attorneys) like prisoners," Dalton says. "Visits should be a morale booster for deputies and inmates alike. Instead, they discourage visits."

By contrast, jail guards in Jefferson Parish are "pretty decent and they treat people kindly," says Dalton. "They have very few beatings. They have good medical facilities."

Dalton says Foti's office also does not respect "the release rights" of a prisoner. "They can book him into jail in half an hour but it takes eight hours to get him out," Dalton says. In past interviews, Foti has said the prison processes large volumes of prisoners daily and that security precautions must be taken to prevent the flow of weapons, drugs and other contraband in the jail.

Since taking office, Foti has become the chief defendant in Hamilton v. Morial, the lawsuit filed in 1969 that is now a federal consent decree and one of the longest-running cases of prisoner litigation in the nation. Despite his widely publicized improvements in prisoner medical care, Foti has been unable to convince the American Civil Liberties Union National Prison Project and the federal courts that federal oversight of OPP is no longer needed.

Hamilton v. Morial has resulted in fundamental changes in prison policies, say inmate lawyers familiar with the case. "There have been substantial changes in the medical program, in psychiatric treatment and in general conditions in the jail," says one attorney, who like several others interviewed for this story asked not to be named.

Part of the problem in institutionalizing the reforms is that the procedures must be implemented by deputies who are underpaid, ill-trained and often poorly educated, the lawyer says -- an assessment widely shared by NOPD officers and other veteran observers of the jail.

"The big issue is medical treatment, but it is not a simple problem," says attorney Brett Prendergast, who has litigated a number of cases against the sheriff's office -- including the beating death of an inmate by other prisoners two years ago. "Most of the prisoners going in have some sort of medical problem, including HIV and substance abuse."

While Foti touts high approval ratings from prison health care organizations, the record of compliance often does not match the sheriff's claims, Prendergast says. Foti brought in a new medical director but problems persist, Prendergast says.

"It is a tough job with limited resources," Prendergast says. "This is a very poor city with a very high crime rate."

Prendergast says another longstanding problem is the investigation of inmate deaths. He recalls one client-inmate who died of meningitis and was untreated, despite the prisoner's complaints at sick call. "Other inmates observed he was walking into walls," the attorney says. "He collapsed in the shower. Other prisoners called for help. ... He was taken to Charity Hospital where he was pronounced dead."

Foti's staff -- not NOPD -- does most of the investigations into these deaths, Prendergast says. "I'm not saying the sheriff's probes are biased or inaccurate, but there is a perception that they are not as thorough or accurate as they might have been [if they had been done by NOPD or another agency]," the attorney says.

Foti's office is moving aggressively, if not belatedly, to resolve other longstanding complaints. Kenneth Kolb, attorney for the Advocacy Center, a federally recognized protector of people with disabilities in Louisiana, says long-awaited reforms are in sight for deaf people who are booked into the jail.

Kolb and Lafayette-based disabilities lawyer Nell Hahn say that after 20 years and two separate federal consent decrees, the sheriff's office is close to providing communications devices and translators for deaf prisoners. "Currently, we are negotiating and developing a workable process for implementing the consent decree of 2001," Kolb says. "We are fine-tuning. The Sheriff's Office counsel Pete Matthews has been very helpful and has come up with some good ideas and has been very positive in wanting the settlement to work."

Other lawyers and critics familiar with the long-running controversy say Foti's office agreed to a federal consent decree for deaf inmates in 1983 -- then ignored the court order. A second consent decree was signed in 2001, arising from a suit by deaf inmate Nemia Jiles. The chief difference between the 1983 and the 2001 consent decrees is that the latest settlement will have a monitoring system.

"We are hoping to get everything in writing and implemented by early September," says Kolb. He adds that the Advocacy Center has received no complaints from Orleans Parish prisoners with other disabilities.

"Foti's problem is to get the procedures to actually work," says a lawyer familiar with the case. Like Howell and Dalton, other attorneys say Foti needs a compliance officer to make sure court orders are followed. "The problem is verification," the lawyer says.

click to enlarge CHERYL GERBER
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