Supreme Court never finished inquiry of Louisiana diversion programs at heart of scandal 

Don Landry at podium for Pellerin press conference May 2021
District Attorney Don Landry, speaking at a May 2021 press conference, won't say whether he undertook a promised audit of his office's pretrial diversion program at the canter of a major bribery scandal. Photo by Travis Gauthier

UPDATE: After this story published, the Louisiana Supreme Court turned over an interim report on diversion programs among the state's district attorneys that was presented to the Louisiana Judicial Council in October 2018. “[E]valuating the full financial effects of diversion would require a system-wide analysis of the public defenders, courts, clerks, and other agencies that receive funding from fines and fees. It may be a more appropriate area of inquiry for the Legislature or the legislative auditor,” the report concluded. Read it here.

Around a decade ago, district attorneys across Louisiana ramped up pretrial diversion programs, drawing ire from critics who saw a money grab in their proliferation. A lack of oversight, critics said, made it hard to evaluate what benefit such programs had on the justice system.

Citing such “growing concerns,” Louisiana Supreme Court Chief Justice Bernette Johnson began an inquiry of the state’s 42 district attorneys and their diversion programs. The analysis Johnson envisioned would be taken up by the court’s research arm, the Louisiana Judicial Council, which she chaired. But it was never completed.

In 2023, Johnson’s request for information seems prescient. A major bribery scandal centered on diversion programs has erupted in the state, the full scale of which federal prosecutors have yet to lay out. Calls for oversight have reignited, and what little independent review of these programs has occurred has consistently found flaws and opportunities for abuse of power.

No one seems to know — or will say — why Johnson’s inquiry appears to have fizzled. Reached by phone, Johnson, who retired in December 2020, declined to comment, referring questions to the current court.

“Although you’ll find discussion and consideration of diversion programs among the minutes of the Louisiana Judicial Council on the Supreme Court’s website, there was no formal written report prepared by the Court on pretrial diversion,” Trina Vincent, a spokeswoman for the LSC wrote in an emailed response.

More than a month ago, the LSC said it was working on responses to Straight News Online’s questions and identifying information from district attorneys who turned over the data in 2018. “We will get back to you as soon as we can,” Robert Gunn, deputy judicial administrator for Community Relations, wrote June 24. Neither Vincent nor Gunn responded to Straight News Online’s followup email for the information on July 5.

District attorneys have consistently defended diversion programs for their judicial economy. An official with the Louisiana District Attorneys Association says the Supreme Court study would not, in all likelihood, have prevented the recent scandal, which one watchdog has called “the largest criminal justice scandal on the state level I’ve seen in 40 years.”

A burdensome request

Johnson, now retired, asked every district attorney in the state to compile three years of data establishing the extent to which their offices were moving cases from the courtroom and into pretrial diversion programs. Her appeal for information was broad, asking for financial information, audits and documentation demonstrating the benefits of pretrial diversion, including “evidence of savings on incarceration, evidence of recidivism, etc.”

In her March 2018 letter to DAs, Johnson said she hoped to establish “the impact of such programs on the courts, indigent defenders, sheriffs, and other members of the criminal justice system.” She told the DAs she understood compiling the information would take time and might “entail some administrative burden.”

“We would appreciate your response not later than 60 days from the date of this letter,” she wrote.

Some DAs were unhappy about what they considered a burdensome request, according to a 2018 story in The Advocate, and it’s unclear just how many turned over their data.

DAs throughout the state operate their programs with little oversight and transparency, and while the Louisiana District Attorneys Association offers guidelines, which it says are regularly updated, DAs are under no obligation to abide by them. The state does not provide any funding to district attorneys’ offices for these programs but restricts how DAs can use the funds they generate.

“The model we have in Louisiana is admittedly not the best. It’s not even close to the best,” says Loren Lampert, executive director of the Louisiana District Attorneys Association, acknowledging the lack of data to support the effectiveness of the programs. “There are a few individual DAs who track recidivism rates for certain programs,” he says. “Unfortunately [studying outcomes] would probably cost just as much money as it would be to run the program for a year. Tracking that would be awesome, but difficult.”

Two years after Johnson’s solicitation, the Louisiana Legislative Auditor’s Office found that “many” district attorneys’ offices in the state permitted expenditures that may be violating state law. An “informational audit” of all 42 districts found that at least six offices hadn’t fully implemented the LDAA’s guidelines.

Some 12 of the 42 pretrial diversion programs did not include provisions in their policies limiting expenditures to those allowed by state law, which restricts diversion revenues to the program’s related expenses, other types of diversion and victims’ assistance programs, and (since 2022) crime labs.

The legislative auditor made clear that its review did not constitute an actual audit of the programs.

Lampert says he doesn’t know what happened to the state Supreme Court’s planned 2018 study but has been under the impression district attorneys willingly participated. He says the problems the legislative auditor identified with specific offices not following the LDAA’s guidelines two years later were addressed.

‘That’s not going to stop them’

The planned Supreme Court study likely would not have identified any problems in the 15th Judicial District Attorney’s Office, today ground zero for the scandal, as the diversion program was overhauled after Don Landry took the reins from Keith Stutes in 2021. Stutes' office participated in Johnson's study, turning over records documenting the 15th's diversion program.

Federal investigators raided the 15th’s offices in May 2022, and so far the investigation has snagged a single guilty plea, from Dusty Guidry, who worked as a contractor for Landry — helping to run the diversion program with Assistant District Attorney Gary Haynes — and as a full-time employee for 23 years for the East Baton Rouge Parish District Attorney’s Office. In court documents, Guidry admits taking in more than $800,000 in kickbacks from exclusive vendor firms that provided services to Landry’s program.

East Baton Rouge Parish District Attorney Hillar Moore did not respond to a request for comment.

Moore moved quickly to distance himself from Guidry after Guidry’s felony drug arrest in December 2021, immediately accepting Guidry’s resignation, while Landry kept Guidry on as contract employee until the FBI came calling five months later. Thus far, overlap in vendors has been identified among the 15th, Moore’s 19th and the 27th in St. Landry Parish.

“The first thing Hillar Moore did was do an integrity audit of his program,” says the LDAA’s Lampert. ”I mean, he shut it down and did an integrity audit. … So, you know, give him a little credit for that at least.”

It’s unclear what corrective steps Lafayette’s district attorney has taken since then for the three-parish region. Don Landry initially waved away concern, promising full cooperation and attributing the FBI’s interest to his program’s growth, which he called in a press release “a good thing.”

Landry promised to undertake an independent audit of the diversion program after the FBI raid in May 2022. Asked for records documenting that audit, he cited an exemption to the Louisiana Public Records Act related to criminal litigation and denied Straight News Online’s request for any such records. He did not answer a followup question about whether he had even sought the audit he promised. Straight News Online reported last month that Landry’s regular auditors have identified problems with controls and accountability in his pretrial diversion program.

The Kolder Slaven firm raised red flags in its 2021 audit, saying the office did not have adequate written policies and procedures for its pretrial diversion program, resulting in “inconsistent and incomplete documentation being maintained in participant files.” They also said in the report that the office could be running afoul of state law.

Rafael Goyeneche, president of the watchdog New Orleans Metropolitan Crime Commission, didn’t mince words about the seriousness of the kickback scheme and potential wide-ranging impacts in an April interview with The Advocate. “There needs to be an audit conducted of all the cases that have gone through diversion in Baton Rouge and Lafayette,” he said. “And if these vendors are doing business in any other jurisdictions, they need to be audited as well. This is a massive compromising of the state’s criminal justice system.”

Despite the potential damage to public confidence in the justice system, there appears to be little appetite to pick up where Chief Justice Johnson left off.

No amount of studies, audits or legislation would have prevented what the feds say went on in the 15th and possibly other districts across the state, Lampert argues.

“You're not gonna policy or legislate your way out of people's willingness to violate [the law]. You're not gonna train somebody out of intentional criminal conduct,” he says. “We could write these guidelines. Look, we could put 'em in the constitution. If somebody is committed to committing a crime, that's not gonna stop them.”