Fix Your ‘Failing’ Public Defense System, ACLU Tells Nevada

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A class-action lawsuit charging Nevada with violating its constitutional responsibility to ensure all citizens receive equal treatment before the law is aimed at pushing the state to fix its “utterly failing” public defense system, according to the American Civil Liberties Union (ACLU).

In the suit filed Thursday, the ACLU and its state branch argued 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 is intended to remind state authorities that the constitutional “right to a defense exists for all Nevadans and is not a privilege reserved for the privileged,” said Emma Andersson, staff attorney for the ACLU’s Criminal Law Reform Project.

“Once upon a time, Nevada was a pioneering force ensuring that the right to counsel didn’t depend on the size of your wallet,” Andersson told The Crime Report.

“It’s disheartening that the state has fallen so far off course and failed to fix the problem, despite being on notice for the last decade that the system is utterly failing.”

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 result, according to the ACLU’s Andersson, is a system of unequal justice that depends on how much money a defendant has.

“Imagine you’re in jail pre-trial for over a year while your lawyer does no investigation of your case, files no motions on your behalf, doesn’t keep you informed about what’s happening, and then convinces you to plead guilty because he doesn’t have time to take your case to trial,” Andersson said in an emailed response to questions from The Crime Report.

“Then you spend another year sitting in jail while your case is on appeal, your lawyer does an amazing job, and you ultimately win. Would that feel like a functional system to you in which your Sixth Amendment rights were upheld?

“The constitutional right to counsel begins long before an appeal, and long before a trial or a plea.”

The suit notes that Nevada was once a leader in the national drive 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).

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 challenge to what it considers inadequate public defense systems in states and counties.

Nevada joins Fresno County, Ca; Grays Harbor County, Wash,; Luzerne County, Pa; Orleans Parish, La; Idaho; Missouri, and Utah.

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

See also: “Fulfilling Gideon’s Promise of Justice”

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

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