ACLU Lawsuit Claims Nevada Violates Indigents’ Right to Counsel

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Nevada has “abdicated” its duty under the Constitution to ensure rigorous legal representation for indigent defendants, according to a class-action suit filed today by the American Civil Liberties Union (ACLU).

The ACLU, joined by its state branch, argues that in 11 of Nevada’s 16 counties, the right to legal help for indigent defendants established by the 1963 Supreme Court’s Gideon v. Wainwright ruling has not been fulfilled.

The suit argues that insufficient resources and lack of oversight by the state have caused these rural counties to use contract attorneys in place of a functional public defense system.

“The right to counsel is the lifeblood of the criminal justice system,” the complaint declared, noting that the Supreme Court’s ruling established that indigent defendants are covered under Sixth Amendment guarantees of due process, including the right to legal counsel.

“The principles of equal justice and due process rest on fulfillment of this (Constitutional) duty,” the ACLU added.  “Yet the public defense system in Nevada’s rural counties is plagued with serious systemic deficiencies that the state and the governor have long known about and persistently failed to remedy.”

In Nevada, contract attorneys are paid through a system of de facto flat fees, where they receive the same amount of money regardless of the effort and time invested. As a result, the suit says, they tend to neglect cases they receive from the county—oftentimes ignoring these clients for months, pressuring them into pleading guilty to charges they have not investigated, or failing to advocate effectively for clients at sentencing.

Moreover, according to the suit, many contract attorneys in Nevada are not required to have training, experience, or education relevant to criminal defense.  In many cases, these attorneys have private clients whose cases compete for their time and effort against the far less profitable and underfunded public defense cases.

The suit notes that the current situation is especially worrying, considering that Nevada was among the first states to establish an equal right to counsel regardless of a defendant’s ability to pay.  In In re Wixom (1877), the Nevada Supreme Court ruled that “the failure to appoint counsel to the poor in a criminal case was a valid reason to overturn convictions on direct appeal.”

It was not until 86 years later that the U.S. Supreme Court affirmed this in Gideon v. Wainwright (1963).

Nevada’s state government has been on notice for the last ten years regarding this issue.

The Nevada Supreme Court’s Indigent Defense Commission, established in 2007, commissioned a report titled “Reclaiming Justice,” which documenting the shortcomings of public defense in Nevada’s rural counties. The report was issued in 2013 by the Sixth Amendment Center.

Franny Forsman, who served as the federal public defender in Nevada for more than 20 years, is co-counsel in the suit.

This lawsuit will mark the ACLU’s eighth regarding states’ and counties’ inadequate public defense.

Nevada joins Fresno County, California; Grays Harbor County, Washington; Luzerne County, Pennsylvania; Orleans Parish, Louisiana; Idaho; Missouri, and Utah.

The ACLU has also filed lawsuits claiming systematic Sixth Amendment violations by courts in Beaufort and Bluffton, South Carolina; and Miami-Dade County, Florida.

Brian Edsall is a news intern with The Crime Report. Readers’ comments are welcome.

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