Nevada’s commitment to equal justice that began in the 1870s reached its zenith in 1971. The U.S. Supreme Court handed down its Gideon v. Wainwright decision in 1963, mandating that states – not counties or local governments – must assure competent counsel to poor people accused of felonies in state courts. In the wake of that decision, in 1970 the National Conference of Commissioners on Uniform State Laws, funded by the U.S. Department of Justice, published a Model Public Defender Act that it recommended all state governments adopt. Following that recommendation, in 1971 the Nevada Legislature created the State Public Defender as an executive branch agency charged with administering the constitutional mandate to provide competent lawyers to the poor in all counties other than Clark (Las Vegas) and Washoe (Reno).
The State Public Defender Act created an independent seven-member commission appointed by a diversity of factions to ensure that no single branch of government could exert undue interference on the work of the agency dedicated to representing poor people. The commission was charged with overseeing the State Public Defender system, hiring and firing the executive of the system, and setting uniform policies for the delivery of indigent defense services. If created today, the State Public Defender Commission of 1971 would meet virtually every national standard related to the independence of the defense function.
The Preeminent Need for Independence of the Defense Function
In 1981, the United States Supreme Court determined in Polk County v. Dodson that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.” Observing that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client,” the Court concluded in Polk County that a “public defender is not amenable to administrative direction in the same sense as other state employees.”
Independence of the defense function is especially necessary to prevent undue judicial interference. As far back as the Scottsboro Boys case (Powell v. Alabama), the U.S. Supreme Court questioned the efficacy of judicial oversight and supervision of right to counsel services, asking: “[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that, in the proceedings before the court, the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.”
National standards of justice reflect the aims of the U.S. Supreme Court. In February 2002, the American Bar Association (ABA), House of Delegates adopted the Ten Principles of a Public Defense Delivery System, noting that the Principles “constitute the fundamental criteria necessary to design a system that provides effective, efficient, high quality, ethical, conflict-free legal representation for criminal defendants who are unable to afford an attorney.” In 2012, the U.S. Attorney General stated that the ABA “literally set the standard”for indigent defense systems with the promulgation of the Ten Principles.
The first of the ABA Ten Principles explicitly states that the “public defense function, including the selection, funding, and payment of the defense counsel, is independent.” In the commentary to this standard, the ABA explains that the public defense function “should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel,” noting specifically that “[r]emoving oversight from the judiciary ensures judicial independence from undue political pressures and is an important means of furthering the independence of public defense.” Likewise, the public defense function should also “be independent from political influence.” To “safeguard independence and to promote the efficiency and quality of services, a nonpartisan board should oversee defender, assigned counsel, or contract systems.”
Footnotes to ABA Principle 1 refer to the National Study Commission on Defense Services’ (NSC) Guidelines for Legal Defense Systems in the United States (1976). The Guidelines were created in consultation with the United States Department of Justice (DOJ) under a DOJ Law Enforcement Assistance Administration (LEAA) grant. NSC Guideline 2.10 (The Defender Commission) states that a “special Defender Commission should be established for every defender system, whether public or private,” and that the primary consideration of appointing authorities should be “ensuring the independence of the Defender Director.”
Independence of the defense function is the first of the ABA Principles because without it most of the other ABA Principles are unobtainable. Fearing a loss of their jobs if they do not please either a judge or a county/state executive, defenders are at risk of taking on more cases than they can ethically handle (in violation of Principle 5), inappropriately delaying work on a case (in violation of Principle 3), not meeting the requirements of ethical representation as a result of triaging services (Principle 10), and agreeing to work under low-bid, flat-fee contracts (Principle 8).
About face: Nevada’s turn away from its commitment to equal justice
In 1975, only four years after creating the State Public Defender Commission, the Nevada Legislature did away with it and voted instead to make the State Public Defender a direct appointment by the Governor. Chief public defenders who are direct political appointees often take into account what they must do to please the Governor, rather than doing what is solely in the best interest of the defendants as ethics require, or they risk losing their jobs.
Say, for example, that a Governor calls for all executive branch departments to take a 10% cut in their budgets. The problem is that public defenders are constitutionally required to defend all people appointed to them from the court. Unlike other aspects of government, the defense practitioners do not control their own workload. Therefore a 10% budget cut is impossible to implement if it is not met by a 10% cut in workload –- at least it is impossible if one is concerned about providing ethical representation. But, despite the ethical considerations, the public defender that is a direct gubernatorial appointee is likely to cut 10% rather than risk being replaced by someone who will do what the Governor says.
Not surprisingly, the Nevada State Public Defender resigned in 1979, stating that the undue political interference, institutionalized by the Nevada Legislature in 1975, made it impossible to fulfill the agency’s mission. A subsequent independent review marked the State Public Defender system as “disorganized and underfunded.”
In 1989, the legislature further compromised the ability of the State Public Defender to render effective services by demoting the position from a gubernatorial cabinet-level position to one of several intra-agency positions within the Department of Human Services. This move resulted in the State Public Defender having to argue for adequate budgetary resources amongst several other Human Service agencies. From there, the director of Human Services would have to argue for all of their needs against the needs of all the other executive branch departments.
Without an independent voice to advocate for appropriate resources, the state’s commitment to the rural counties deteriorated further. As originally conceived, the state paid for 80% of all public defender costs in the rural counties and the counties funded the other 20%. The state’s financial commitment slowly eroded to the point where counties, at first, had to pay the majority of the costs and, eventually, 80% of the entire cost. Counties quickly learned that, by simply opting out of the state system, they could spend less money to provide the services and exercise local power over their public defense systems.
Unfortunately for those too poor to hire their own counsel, this movement out of the State Public Defender system was done with no guidance whatsoever by the state. There were no standards as to how the counties must set up their systems. There were no standards to say what training or experience attorneys must have to take indigent defense cases or what on-going training was required for them to continue to take cases. In most instances, the county governments established systems in which the lowest bidder was contracted to provide representation in an unlimited number of cases for a single flat fee. The attorneys were not reimbursed for overhead or for out-of-pocket case expenses such as mileage, experts, investigators, etc. The more work an attorney did on a case, the less money that attorney would make, giving attorneys a clear financial incentive to do as little work on their cases as possible.
The impact of this devolution was keenly felt during a survey undertaken by the Nevada Supreme Court Indigent Defense Commission in 2008. Since no state agency was responsible for the representation given to poor defendants in rural Nevada, the commission had to ask each county to self-report information such as indigent defense expenditures and number of cases. Some counties could not or would not provide this basic information to Nevada’s highest Court.
Douglas County self-reported that it spent $383,683 in 2007 on primary defender services (or, $191,845 each for two separate attorneys) and $46,661 on conflict counsel, with an additional $23,036 spent on case-related services. Though that may sound like a lot of money, the county reported that in the same year they had 202 felony cases including one murder case, 3,249 misdemeanors, and 341 juvenile delinquency cases. So, on average, there was only $119.56 available on each of these cases to pay the attorney a fee, and to pay the attorney’s overhead, and to pay for all of the necessary out-of-pocket expenses in the case. One hundred and forty years ago the Nevada Legislature first set attorney compensation at a rate not to exceed $50 dollars per case. The relative historical value of $50 in 1874 is estimated to be about $12,200 in 2007 dollars, yet Douglas County public defenders in 2007 earned less than 1% of that.
ABA Principle 5 states that national “caseload standards should in no event be exceeded.” National caseload standards were first developed in 1973 under a grant from the United States Department of Justice. They state that no attorney should handle more than 150 felonies in a single year if that is the only type of case handled. Similarly, an attorney handling only misdemeanors should have no more than 400 per year; juvenile delinquency matters no more than 200 per year; and, appellate matters no more than 25 per year.
Using these national standards, Douglas County should have had over eleven full-time attorneys when, in fact, they operated with just three part-time attorneys. And, the situation is actually far worse. National standards require indigent defense practitioners to have adequate support staff. For example, national standards require indigent defense systems to have one investigator for every three attorneys. A state like Indiana lowers the maximum number of cases a public defense attorney is allowed to handle in a year if the attorney is not provided with the required number of support staff. No such support staff was reported in Douglas County.
Additionally, the part-time conflict attorney handled only those cases where the other two attorneys had conflicts (and, again, Douglas County was unable to provide a simple count of the cases that went to this part-time conflict attorney). We know the conflict attorney was paid only ¼ of the amount paid to each of the other two attorneys, so from that we can reasonably estimate that the conflict attorney received 1 case for every 4 cases that each of the primary attorneys received, or 1 of every 9 cases. This would mean that each of the part-time primary attorneys handled an average mixed caseload of 1,685 cases (or the equivalent of the caseload of nearly five full-time attorneys that would be allowed under national standards). And, this does not include other work the attorneys were required to do under their contracts, such as family court work and parole and probation violations.
Douglas County is not alone. The Las Vegas Review Journal investigated the indigent defense system in Lyon County, and they found even more problematic conditions. When a contract defender there was appointed to the bench, his pending cases needed to be transferred to another attorney. A 27-year-old attorney who had only passed the bar exam a few weeks prior inherited the $105,000 contract. He also began day one of his tenure as a public defense attorney with 600 cases, 200 of which were felonies and some of those were murder cases. So a brand new part-time attorney with no experience or training was expected to jump into a caseload that under national standards should have been handled by more than three experienced full-time attorneys.
And, all case-related expenses had to be paid out of that same flat fee. The Review Journal article reports that one public defense attorney in Lyon County must “travel 400 to 600 miles a week to courthouses in Fernley and Yerington, travel time that cuts into the time he can spend with clients.” With gasoline prices in 2007 at approximately $3.10 a gallon, the attorney was spending at least $4,000 out of that $105,000 flat fee just for gas. Factor in overhead costs (e.g., insurance, bar fees, training, Internet, office space, etc.) and anything needed to properly defend the accused (e.g., experts, investigation, etc.), and it becomes obvious that, under flat fee contracts, public defense attorneys have financial interests to dedicate as little funding to case-related expenses as possible.
For these reasons, ABA Principle 8 specifically bans flat fee contracts: “Contracts with private attorneys for public defense services should never be let primarily on the basis of cost; they should specify performance requirements and the anticipated workload, provide an overflow or funding mechanism for excess, unusual, or complex cases, and separately fund, expert, investigative and other litigation support functions.”
Sorting it all out on appeal
When a defendant is convicted and sentenced in a trial court, he has the right to have the decision reviewed by a higher authority. During this review process, the defendant can claim that his trial lawyer performed so poorly that it negatively and unfairly affected the outcome of the case. These claims are called “ineffective assistance of counsel claims” (IAC claims), and if found meritorious the case will be sent back to the trial courts to be re-tried. Throughout the work of the Supreme Court Indigent Defense Commission, the Court heard that there is no problem in the rural counties because there have been few successful ineffective assistance of counsel claims.
However, upwards of 90% of all criminal cases in the nation are resolved through plea bargains, not trials. Douglas County, for example, self-reported that of the 3,793 indigent defense cases assigned in 2007, only four (4) cases went to trial. This is a trial rate of less than one half of one percent (0.11%). More astonishing still, none of the 3,249 misdemeanor cases were ever brought to trial. And, Nevada limits the issues that can be raised on direct appeal from a guilty plea. Finally, only a tiny fraction of the cases that do go to trial ever move on to the appellate system. Therefore, it is simply unsound to gauge the health of an entire indigent defense system based on but a small fraction of the few cases that do go to trial and are appealed.
In certain circumstances (e.g., if all the facts necessary for an IAC finding are contained in the trial record), an IAC claim can be brought on direct appeal. But, in rural Nevada, the same attorney who represented the defendant at trial is also responsible for handling the direct appeal. What are the chances that overworked, unprepared, financially conflicted, public defense attorneys will ever raise ineffective assistance of counsel claims against themselves in a direct appeal? In 1874, Shepherd L. Wixom may have had no appellate review because of a lack of counsel, but poor defendants in rural Nevada today continue to have no meaningful review because the system is structured so as to, in effect, give them no direct appeal.
The first real chance of raising ineffective assistance of counsel claims occurs at the post-conviction stage of a criminal proceeding, where a defendant may raise new issues about the constitutionality of his conviction beyond what is in the trial record. But, of course, there is no federal right to counsel in post-conviction proceedings, and Nevada only appoints counsel in post-conviction death penalty cases. So, if there is no counsel, there is no investigation, and there is no ability to develop the factual basis for an IAC claim.
Further, to the extent that ineffective assistance of counsel claims are raised on either direct appeal or post-conviction in cases arising out of rural Nevada courts, they are then typically subjected to an inappropriate standard of review. Strickland v. Washington established a two-pronged test for ineffective assistance of counsel, requiring that a defendant prove his trial attorney’s actions were outside of the bounds of generally accepted norms of practice and that the failure of the attorney was prejudicial in the outcome of the case. This is most often the test applied by reviewing courts.
On the very same day, the U.S. Supreme Court handed down United States v. Cronic as a companion case to Strickland. Cronic concluded that the right to the effective assistance of counsel is “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” Referencing Strickland, the Cronic Court noted that when “a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred.” However, the Court continued, “if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” So, if there is a complete breakdown in the adversarial system, then it is entirely appropriate to “[conclude] that, under these circumstances, the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair.”
The Cronic Court gave criminal justice stakeholders an example of systemic deficiencies that prevent a meaningful adversarial process – the case of the so-called Scottsboro Boys in Powell v. Alabama. Reviewing Cronic and Powell together, it is clear that the U.S. Supreme Court has defined a meaningful adversarial process as one in which the system has both appointed an attorney and also given that attorney the time and resources to do an effective job. Reflecting on the lack of advocacy given the Scottsboro Boys, the Powell Court said: “from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense.” Moreover, “[i]t is vain to give the accused a day in court with no opportunity to prepare for it, or to guarantee him counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case.”
Thus, if a defendant is not given an attorney with the time to conduct a thorough investigation, the system is inherently defective. This is true whether the lack of time is caused by being formally appointed too late in a case or by an excessive caseload that precludes the attorney from spending the appropriate amount of time on a case. When an attorney agrees to handle 1,400 cases in a year, or has 600 cases on his very first day with no prior experience, or is willing to sacrifice zealous advocacy to please a judge or executive, the defense system is no longer capable of subjecting each prosecution to “the crucible of meaningful adversarial testing.” The system is inherently deficient.
Was Shepherd L. Wixom guilty of robbing stagecoaches in Lander County in 1873? Did the real perpetrator of the crime remain at large to wreak havoc on public safety in Nevada while an innocent man languished at the state penitentiary for ten long years at tax payer expense? Or, did Wixom receive his just punishment? The simple answer is that no one will ever know for certain because Wixom did not get to subject his indictment to meaningful adversarial testing.
The fact that the criminal courts in rural Nevada today do not, in every instance, provide an adequate right to counsel, means that the same mistakes are still being made that threaten public safety. The state of Nevada must make every effort to restore a meaningful right to counsel to ensure that its criminal courts are doing the very best to convict the guilty while preventing the wrongful conviction of the innocent.
Photo credit: Austin, Nevada (c. 1870). Special Collections, University of Nevada, Reno Library.