Chapter 4: The Right to Counsel in Nevada Established

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During Shepherd Wixom’s arraignment, Judge McKenney surveyed the courtroom as was the common practice in Nevada to see if any attorneys were present and willing to assist Wixom’s defense. But when there were no such attorneys present, Judge McKenney was not about to slow down justice to find one.  Instead, he allowed Wixom to work with a non-lawyer to help prepare his defense as best he could.

Capitol Building, Carson City Nevada, c1870Five days later, on January 12, 1874 at 5 o’clock in the afternoon, the trial of Shepherd Wixom began.  There is little that remains in the historical record about the trial, other than that “justice was swift.” We do know Wixom told Judge McKenney that he was not prepared for the trial because he had been denied a lawyer.  We also know Wixom asked for the trial to be delayed, claiming as he had at the time of his arrest that there were witnesses who could provide testimony that Wixom was not the notorious road agent who had been terrorizing the stagecoach company.  And, Wixom reminded the court again that his witnesses could not be reached because the court denied him counsel.

Judge McKenney was not persuaded.  He denied the continuance and proceeded to trial.  A jury was empanelled, the trial occurred, and the jury deliberated for all of fifteen minutes before reaching a verdict of guilty – all within a single evening. The main testimony against Wixom came from Sheriff Emery.  When the Sheriff examined a second coat ordered by the Manhattan Silver Mining Company and compared it to the coat Wixom was wearing when arrested at Battle Mountain, Sheriff Emery determined that “[t]hey were as like as two eggs.” The Territorial Enterprise reported that, although Wixom acted as his own defense counsel, he conducted his “case with marked ability, proving himself a perfect success as a cross-examiner, but his cunning availed him not.” There could be no conclusion but that Wixom had taken the coat along with other goods and money from the stagecoaches he had robbed.

The next morning the Sacramento Daily Union reported that highwayman Wixom was convicted and, rather than face a return to the Nevada State Prison, Wixom attempted to hang himself in his cell using his own socks.  “The alarm was given by another prisoner, and officers cut the socks from Wixom’s neck in time to save his life.” Wixom was promptly sentenced to ten years at hard labor at the state penitentiary.

Under the rules of criminal procedure in 1874 Nevada, “[a]n appeal must be taken within three months after the judgment was rendered.” Without a lawyer, Wixom was ignorant of this fact and was not able to challenge the constitutionality of his trial on direct appeal because the deadline lapsed.

Assembly Bill 122 (1875)

Thomas WrenWhile Shepherd Wixom served time in prison without a lawyer, the Nevada legislature was at work in 1875.   The Chairman of the Judiciary Committee in the Assembly was Thomas Wren.  A self-made man, Wren was orphaned at a young age and what little property that was left to him was swindled away by a lawyer retained to look after his best interests. Rather than ruing his life, Wren set off for California in the gold rush and worked tirelessly in the mines before apprenticing to become a lawyer.  He eventually moved to Austin, in Lander County, Nevada, where he was the city attorney and prosecutor from 1864 to 1866.  Subsequently, Wren was elected to the Nevada Assembly as the representative from Eureka.  He would later serve as the Nevada’s lone U.S. Congressman from 1877 to 1879, but in 1875 he was passionately and persuasively arguing in the Nevada Assembly.

“The love of life is the strongest feeling implanted in the breast of man.  The fear of losing it tends to prevent the commission of crime, by bad men, far more powerfully than any other punishment that can be devisedAssembly Bill 122.  It is certainly far more effective than imprisonment for life.” Thomas Wren uttered these words during debate on a bill that sought to curtail the use of the death penalty in favor of lifetime imprisonment.  As a former prosecutor, it is not surprising that Wren took such a position in the debate.  Wren was one of the day’s leading Republicans and widely viewed as an expert on the law.  His perspective, that “murders would not be so common if the death penalty, in punishment of the crime, was more certain and frequent,” carried the day as the bill to curtail the death penalty was defeated.

What is surprising, however, is that Wren, who was such a staunch proponent of tough criminal sanctions, authored another bill in the very same session to authorize the appointment and payment of defense counsel to assist those accused of crimes who could not afford an attorney.  The bill presumed, as was the case, that attorneys were appointed regularly in Nevada and it sought to have them paid for their work.  Assembly Bill 122 (1875) stated:

Section1.  An attorney appointed by a Court to defend a person indicted for any offense, is entitled to receive from the County treasury the following fees: For a case of murder, such fee as the Court may fix, not to exceed fifty dollars; for felony, such fee as the Court may fix, not to exceed fifty dollars; for misdemeanor, such fee as the Court may fix, not to exceed fifty dollars.  Such compensation shall be paid by the County Treasurer out of any moneys in the Treasury, not otherwise appropriated, upon the certification of the Judge of the Court, that such attorney has performed the services required.

Section2.  An attorney cannot, in such case, be compelled to follow a case to another county or into the Supreme Court, and if he does so, may recover an enlarged compensation, to be graduated on a scale corresponding to the prices allowed.

Section 3. This Act shall take effect from and after its passage.

According to the Nevada Monthly, Thomas Wren was one of the most successful and able lawyers in the state.  “His honor is untarnished, and throughout the state his word is as good as his bond.” Under Wren’s leadership, the bill passed the Assembly on a vote of 34 to 3 with 14 abstentions. It passed the Senate on a similarly wide margin.

Did Wren’s time as a prosecutor make him understand the importance of a strong defense in an adversarial environment in order to reach the truth?  Perhaps it was Wren’s own impoverished upbringing or the fact that an unethical lawyer swindled him out of what little money his parents left him that made him want to ensure poor people were treated fairly in the justice systems of Nevada.  We cannot be sure, but a passage in a local journal published in 1880 hints that all of Wren’s works were toward the goal of securing the rights of poor people: “[Wren’s] purse and services have always been at the command of honest poverty and distress, and hundreds of struggling and unfortunate men in this State have been aided and their rights secured through his exertions.”

In re Wixom

By the time Shepherd Wixom was able to make arrangements to sell what little property he owned and hire an attorney, the only legal action available to him was to petition the Supreme Court of Nevada for a writ of certiorari – a formal request asking a higher court to review the actions of a lower court in a specific proceeding to determine if there were any irregularities.  On April 2, 1877, Wixom’s private attorney T.W.W. Davies filed a writ of certiorari with the Nevada Supreme Court.

Wixom PetitionThe petition filed on behalf of Wixom claimed that: a) the trial court “compelled your petitioner to plead to said indictment without the aid of counsel;” b) accommodations were not made to find his material witnesses; and c) the trial court ignored his objection “to proceeding with the trial of said cause without the aid of counsel, as he was totally unlearned in the law and unable to conduct his defense.”  The petition characterized Judge McKenney’s failure to grant Wixom a fair day in court a “gross abuse” of power, stating that “no appeal was taken in said cause for the reason that he was entirely ignorant of his rights as to appeal and the manner of taking an appeal, and that he had no counsel for his assistance or guidance in taking an appeal.”

As previously noted, the Nevada courts were still in their infancy and the Nevada Supreme Court was keenly aware that every decision it rendered established precedent for future cases.  When Nevada Attorney General John R. Kittrell responded to Wixom’s petition, the focus of the case turned to the Nevada Supreme Court’s jurisdiction in writ of certiorari cases. Based on Nevada statutes and the Court’s own recent opinions, if the lower court had jurisdiction over the case and the person and did not exceed or depart from its jurisdictional authority, then the Supreme Court was without power to disturb its rulings on cert.

There was no doubt that Judge McKenney had jurisdiction over the case and the person of the accused, so the only remaining question was whether the trial judge exceeded or departed from his jurisdiction during Wixom’s 1874 trial.  In Nevada, it was certainly customary for judges to appoint counsel in just about every criminal matter before them, but at the time of Wixom’s arrest and trial there was no statute that required judges to appoint counsel.  The Court observed: “If there was any law which expressly required the district judges to assign counsel to the defendant in a criminal action at any particular stage of the proceedings, a failure to do so would be a departure from the forms prescribed to them by law, and would be ground of reversal on certiorari in cases where the remedy is available.  But in this state there is no such law.” And the Court went on to declare: “In overruling the motion for a continuance, and compelling the petitioner to go to trial without professional counsel, the district judge . . . departed from no express provision of the law.” The Nevada Supreme Court found that it lacked authority to overturn Wixom’s uncounseled conviction on certiorari, and his petition was dismissed.

In a sad twist of legal irony, had Wixom been able to retain private counsel within the appellate filing deadline, it is likely his conviction would have been overturned and a new trial ordered.   Through dicta in Wixom’s case, the Court took pains to say that, in forcing the defendant to go to trial without a lawyer, “the district judge may have erred, and may have abused his discretion . . ..  His action may have afforded good grounds for granting the defendant a new trial, or for reversing the judgment on appeal . . ..” Wixom, however, had never filed an appeal.

williamhenrybeattyThe Court did not stop there.  Justice William H. Beatty, writing on behalf of the unanimous three-person bench, foreshadowed the view of the Nevada Supreme Court in cases to come.  Referring to Wren’s Assembly Bill 122, the Court concluded in In re Wixom that “a statute (Laws of 1875, 142) passed since the trial of this petitioner, has made provision for compensation of attorneys appointed to defend in such cases.  Probably since this statute, if not before, a failure to assign professional counsel for a poor defendant would be deemed a fatal error on appeal . . ..” It was too late for Wixom, but Wren’s 1875 bill and the 1877 Nevada Supreme Court assured that, from that day forward, the failure to appoint counsel to the poor in a criminal case was a valid reason to overturn convictions on direct appeal.

Furthering the Right to Counsel in Nevada

To the extent that Wren’s bill could have been construed as merely giving judges the discretion to pay appointed counsel, but without requiring them to do so, the Nevada Supreme Court eliminated any ambiguity two years later in the 1879 case of Washoe County v. Humboldt County. The case involved, among other things, the payment of counsel in the controversial death penalty case of J.W. Rover. The Nevada Supreme Court, citing Wren’s 1875 law, concluded that it was their duty “to determine the real intention of the legislature.”  Noting the financial hardship some attorneys endured when representing the indigent accused, the Nevada Supreme Court was “of the opinion that it was not the intention of the legislature to invest the courts with any such discretionary power.”  Instead, “[w]e are of the opinion that it was the intention of the legislature to provide for the payment of a fee, not exceeding fifty dollars, to every attorney who defends a prisoner charged with crime, under appointment from the court.”

The right to counsel in Nevada was formally codified in 1909 when the Nevada legislature granted the justices of the Nevada Supreme Court wide authority “to revise, compile, annotate and index the laws of the State of Nevada.” For the most part, the Court adopted the California Penal Code. Once revised, Section 10883 of the Nevada code stated: “If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned and must be asked if he desires the aid of counsel.  If he desires and is unable to employ counsel, the court must assign counsel to defend him.”

Most right to counsel scholars have marked this 1909 statute as the beginning of the right to appointed counsel for the poor charged with crimes in Nevada, simply because it was the first statute directly so providing.  But the law championed by Assemblyman Thomas Wren and recognized by the Nevada Supreme Court in its ruling in the case of Shepherd Wixom firmly established the right in 1877, more than thirty years earlier.

Chapter 5: Would a Competent Attorney have helped Wixom?

Photo credits: 1. Capitol Building, Carson City (c. 1870). Special Collections, University of Nevada, Reno Library; 2. Thomas Wren. Nevada Historical Society; 3. Thomas Wren’s Assembly Bill 122 (1875). Courtesy of the Nevada State Library and Archives; 4. Petition for Certiorari in In re Wixom (1877). Courtesy of the Nevada State Library and Archives; 5. Justice William Henry Beatty (c. 1870). Nevada Historical Society.