by Dale Chappell

"Innocent until proven guilty” is a “cruel and hollow motto when you don’t have an adequate defense, and the government is employing its vast resources to lock you up and take away your freedom,” the ACLU says in describing its recent class-action lawsuit against Nevada’s public defender program. In its lawsuit, the ACLU contends that the state has abandoned its Sixth Amendment duty to provide indigent defendants adequate legal representation.

The lawsuit is the ACLU’s eighth legal challenge to the epidemic of underfunded and inadequate public defender systems across the country. The civil liberties organization has lawsuits pending in California, Washington, Idaho, Pennsylvania, Missouri, Louisiana, and Utah.

The problem with Nevada’s public defender system, the lawsuit alleges, is that it lacks actual public defender offices and instead relies on private contract lawyers who are paid a flat-fee and are usually not reimbursed for their expenses. This flat-fee system “disincentivizes” contract lawyers from doing more than the bare minimum for a defendant, the ACLU accuses. Trial or guilty plea, the lawyer gets paid the same.

The lawsuit also points out that there are no standards for these contract lawyers. They are appointed by local officials, who are usually not even legal professionals. In rural Churchill County, for example, the only legal professional on the local board appointing criminal cases to contract lawyers is the district attorney. Essentially, it is a system that allows prosecutors to choose their opponents, the lawsuit says.

“We have thousands of Nevadans who live in these rural counties and can’t afford to hire an attorney if they’re charged with a crime,” according to Amy Rose, the legal director of the Nevada ACLU. “At the end of the day they just don’t have a fair chance of fighting the government’s charges against them.”

Those charged with crimes in rural Nevada are stuck with high bails and have little to no access to a lawyer before trial. When they do get appointed a contract lawyer, “they are often urged to take a plea deal by a lawyer who barely skimmed their case, much less hired an investigator or tracked down witnesses,” the lawsuit says.

In Churchill County, 364 cases were assigned to a single contract lawyer for fiscal year 2016. That amounts to about one new case per day for that lawyer. Only four of those cases went to trial. “The rarity of trials means that appointed attorneys cannot credibly threaten to hold the prosecution to its burden of proof,” the lawsuit says. “As a result, clients are pressured to accept pleas that do not reflect the merits of their cases.”

The U.S. Supreme Court, in its 1963 landmark case Gideon v. Wainwright, 372 U.S. 335 (1963), mandated that states provide competent lawyers to defendants who need defense counsel. Eight years later, Nevada created the State Public Defender Commission to fund and oversee public defenders. Now, it is county run and county funded, but failing on a statewide level.

“This crisis is old and persistent news in Nevada,” the ACLU’s website regarding the lawsuit says. In 2008, the Nevada Supreme Court’s Indigent Defense Commission Rural Subcommittee found “rural counties are in crisis in terms of indigent defense.” In 2013, a report concluded that “serious systemic deficiencies are plaguing rural counties.” Earlier this year, the governor signed a bill to create a commission to “make recommendations” on how to improve the system. Everyone knows the problem exists, but rather than solving it, Nevada just wants to endlessly rediagnose it,” the website says.

The ACLU is also suing Missouri and Louisiana for Sixth Amendment violations by their public defender programs. In Missouri, the state’s 370 public defenders have a caseload of more than 80,000 cases per year. That is an average of 216 cases per lawyer each year.

In Louisiana, the public defender offices are so underfunded that last year 33 out of the 42 offices turned away cases and put defendants on waiting lists. Not worried this violates the Sixth Amendment, their reasoning is simple: What little assistance they could provide would be so ineffective as to violate the Sixth Amendment anyway. 

Sources: www.reason.com, www.aclu.org

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