Serious problems exist today in rural Nevada when it comes to providing attorneys to poor people who face the potential loss of liberty at the hands of the criminal justice system. The indigent accused may sit in jail for several weeks or even months, waiting to speak to an attorney while witnesses’ memories fade and investigative leads go cold. Once the defendant is appointed an attorney, that individual defendant may be one of several hundred who are all vying at the same time for the attention of that single attorney. Worse, the overburdened attorney will often have financial conflicts that pit his ability to put food on his family’s dinner table against his ethical duty to zealously advocate solely in the best interests of his client.
In 2007, the Nevada Supreme Court established an Indigent Defense Commission (“Commission”) to examine and make recommendations regarding the delivery of constitutionally required indigent defense services in Nevada. The following year, the Commission’s Rural Subcommittee went on record that “rural counties are in crisis in terms of indigent defense,” noting that one county in particular has an annual public defense attorney caseload of “almost 2,000 per contract lawyer.” Not even the most competent lawyer on earth can effectively open, investigate, and dispose of cases at a rate of nearly five and a half cases per day, every single day of the year, weekends and holidays included. If your family member or neighbor or colleague was accused of a crime, would you want them to have an attorney with no time to do anything other than simply pass along whatever plea deal the prosecutor has offered?
Since 2008, numerous Nevada Supreme Court administrative orders have improved the right to counsel in the state’s urban centers. This is most notable in Clark County (Las Vegas), where public defender caseloads are now reasonable, the conflict assigned counsel panel is free of undue judicial interference, and attorney contracts do not impose financial incentives for attorneys to do as little work as possible on a case. But fixing the “crisis” in rural Nevada has proven to be more difficult. There are a wide variety of reasons for this, including a lack of attorneys to do the work, the geographic expanse of most rural counties, and limited infrastructure to train and evaluate attorneys. Perhaps most importantly, though, most rural Nevada counties have insufficient resources to keep pace with the United States Supreme Court as it continually clarifies and expands the responsibilities that attorneys owe to their clients under the Sixth Amendment.
In August 2012, Chair of the Commission and then-Chief Justice of the Nevada Supreme Court Michael Cherry asked the Sixth Amendment Center (“6AC”) to suggest a consensus approach toward achieving constitutionally required provision of the right to counsel throughout the state, and in the rural counties specifically. The 6AC originally envisioned advocating for the creation of a permanent indigent defense commission to administer right to counsel services in those counties where no public defender office is required under Nevada Revised Statutes 260.010. That is, Clark (Las Vegas) and Washoe (Reno) counties would be exempt from state oversight by a permanent commission, while the remaining counties would be relieved of the burden of financing the state’s requirement to provide indigent defendants with effective lawyers in exchange for state supervision of local public defense services. And, though our final recommendations closely align with that projected aim, the reasons why Nevadans should support these recommendations changed significantly as we conducted our work.
The 6AC started out with the intent to place the right to counsel in its historical libertarian context. The argument goes: the Bill of Rights was created to protect the individual from overreaching by big government. Just as the Second Amendment guarantees the individual the right to bear arms to protect liberty and is a check against the potential tyranny of big government, so too does the Sixth Amendment protect an individual’s liberty from overreaching by the massive machinery of governmental law enforcement. Our hope was that Nevada criminal justice stakeholders and policymakers would view the right to counsel as something well within Nevada’s own uniquely libertarian worldview and support recommended changes.
But a funny thing happened on the way to making that argument. In researching the foundation of Nevada’s libertarian culture, the 6AC discovered that the state’s judicial and legislative history is rich with a commitment to equal access to justice for poor people in criminal proceedings; a state commitment that far predates any federal action on the issue. Indeed, as early as 1875 to 1879 Nevada was the very first state in the union to authorize the appointment of attorneys in all criminal matters, including misdemeanors, and the required payment of attorneys for the services rendered.
The father of the right to counsel in Nevada, Thomas Wren, epitomizes the rugged individualism that is characteristic of Nevadans. Wren was a self-made man, who rose from abject poverty as an orphan to eventually serve as the state’s lone U.S. Congressman from 1877 to 1879. Interestingly, Wren was a prosecutor from Austin, in Lander County, then Nevada’s second largest city, before he became a state assemblyman from Eureka. And far from being a bleeding heart, Wren argued on the floor of the Assembly for the expanded use of capital punishment during the same legislative session that he cemented Nevada’s commitment to the right to counsel. As Wren demonstrated, being a law-and-order prosecutor does not require one to resist indigent defense improvements.
Nevada also has its own Clarence Earl Gideon. Gideon was the man who challenged a Florida court’s decision to deny him an attorney. His travails eventually led the United States Supreme Court, in March of 1963, to hand down the landmark case of Gideon v. Wainwright that requires all states to provide competent representation to poor people facing felony charges in state courts. In Nevada, that man was Shepherd L. Wixom. His story, told in the following pages, did not result in his freedom (as Gideon’s story did). However, it did lead the Nevada Supreme Court in 1877 to strengthen the right to counsel law that Wren had introduced two years prior.
The first part of our report, Reclaiming Justice, details the history of the right to counsel in Nevada. We believe this story shows that the people of Nevada have always viewed the right to counsel not as a federal mandate to be resisted, but as a bedrock principle upon which the state was founded. Nevadans should embrace this history and this view today.
The report also demonstrates that the serious systemic deficiencies plaguing rural counties, detailed in the second part of the report, are a relatively recent development (beginning in 1975) and a turning away from Nevada’s longstanding history of ensuring equal justice to people of insufficient means. We hope the recommendations set out in Reclaiming Justice contribute to the restoration of Nevada’s deep-rooted commitment to due process and that justice in rural Nevada will – once again – no longer depend on the amount of money one has in his pocket.