Pleading the Sixth: In January 2008, the Nevada Supreme Court removed the judiciary from the oversight of indigent defense services. On June 8, 2012, a Washoe County (Reno) District Judge tested that mandate with his own administrative order imposing an early case resolution pilot project that will do an end-around the county’s institutional public defenders. In early July, the Washoe Public Defender asked the Nevada Supreme Court to rescind the judge’s order. The Sixth Amendment Center explains the brewing showdown in advance of the Nevada court’s ruling, expected later in the summer.
“We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more,” explained the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25 (1972) extending the constitutional right to counsel to misdemeanor cases. Cautioning that the utterly massive volume of misdemeanor cases charged every year in our nation’s lower courts leads to “an obsession for speedy dispositions, regardless of the fairness of the result,” the Argersinger Court determined that misdemeanor courts were places of “futility and failure” rather than justice when defendants were not given effective representation.
On June 8, 2012 Washoe County Chief Judge of the Second Judicial Court, David Hardy, issued Administrative Order 2012-07 that threatens to return defendants charged with misdemeanors and felonies in Reno to those pre-Argersinger days of “futility and failure.” Rather than appoint the Washoe County Public Defender as statutorily directed, the order creates an early case resolution (ECR) pilot program in which judges can determine on a case-by-case basis whether to appoint Washoe Legal Services (WLS) as co-counsel alongside the Washoe County Public Defender for the sole purposes of extending an initial district attorney plea offer. That the term “co-counsel” is merely a ruse to get around clear statutory appointment language is laid bear by the administrative directive that the Public Defender “shall have no further responsibilities” to the defendant unless “the case is removed from the ECR Pilot Program.”
On June 29, 2012 the Washoe County Public Defender’s Office petitioned the Nevada Supreme Court to direct Judge Hardy to “rescind or vacate” his order through a writ of mandamus (the legal term for court order directing a governmental agency to perform an act required by law). The petition says a writ of mandamus is necessary because Judge Hardy’s order “(1) violates controlling provisions of the Nevada Revised Statutes; (2) does not conform” to an indigent defense plan submitted pursuant to a Nevada Supreme Court order (ADKT-411); and “(3) fails to provide effective criminal representation under the Sixth Amendment to the Constitution of the United States.” Each of these assertions is explained below.
Nevada Revised Statutes
NRS 260.010 requires all counties whose population is 100,000 or more to create an office of the public defender (The U.S. Census Bureau reports Washoe County’s population as 425,710). NRS 171.188 (3) states that the trial court “shall designate the public defender of the county … to represent the defendant.” And if that language is not clear enough, NRS 7.115 states that a district court “shall not appoint an attorney other than a public defender to represent a person charged with any offense” unless the court “makes a finding, entered into the record of the case, that the public defender is disqualified from furnishing the representation and sets forth the reason or reasons for the disqualification.”
On June 29, 2012 the Nevada Supreme Court ordered Washoe Legal Services and the Washoe County District Attorney to respond to the public defender’s petition for a writ of mandamus. The WLS response struggles to find a way around these statutes. WLS argues that NRS 7.115 is simply a “disqualification statute.” That is, since “ECR is supplementary, and appointed along with the public defender, there is no replacement or disqualification.” To WLS, “ECR counsel does not replace the public defender, and because the order does not disqualifiy the Public Defender, ECR counsel is not an attorney ‘other than a Public Defender.’ The ECR lawyer is counsel working in conjunction with the Public Defender.” But when the public defender is ordered to “have no further responsibilities” during ECR it is hard to see how WLS’ reasoning make any sense.
Furthermore, Judge Hardy’s ECR plan violates the American Bar Association, Ten Principles of a Public Defense Delivery System. Principle 7 requires the “same attorney” to “continuously represent the client from initial assignment through the trial and sentencing.”
Pursuant to the Nevada Supreme Court’s inherent authority to regulate legal practices in the state, the Court issued Administrative Order ADKT-411 on January 4, 2008 that, among other things: a) instituted performance standards for attorneys in trial-level adult criminal, juvenile delinquency, and appellate representation; b) removed the judiciary from the oversight and administration of indigent defense; and, c) required each county to submit to the Supreme Court for approval local plans for delivering indigent defense services.
Prior to ADKT-411, Washoe County had a problematic early case resolution program. Sixth Amendment Center Executive Director, David Carroll, had the opportunity to assess the Washoe early case resolution program in action firsthand while in the employ of The Spangenberg Group (TSG). A 1999 TSG report to the Nevada Supreme Court found that the “most troubling aspect of ECR’s operation is that discovery rules in Washoe County are such that public defenders do not always have the state’s discovery in the client’s file before discussing the plea with him or her, and sometimes, we were told, only have a statement of probable cause.” Stating that “[n]o public defender should have to discuss a plea arrangement without a full discovery of the facts,” TSG feared that “[f]aced with a public defender who advises acceptance of the plea, defendants may determine that pleading to the crime will offer them the least punitive alternative, whether or not they are guilty of the crime as charged.”
Announcing that “the paramount obligation of criminal defense counsel in indigent defense cases is to provide zealous and quality representation at all stages of criminal proceedings” and to “adhere to ethical norms” ADKT-411 implemented attorney performance standards for indigent defense providers. In short, ADKT-411’s performance standards require public defenders “to make available sufficient time, resources, knowledge and experience to afford competent representation of a client (Standard 3)” and in particular, to conduct a “prompt investigation of the circumstances of the case (Standard 7).” The duty to investigate exists “regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty (emphasis added).” Given this, the then-new Washoe County public defender felt he could no longer ethically participate in the ECR program and withdrew his office from the program.
Obviously, ADKT-411 performance standards would still apply to WLS’ participation in the ECR program. But what is more troubling is the desire to push ahead with the WLS plan given the recent U.S. Supreme Court decisions clarifying that the right to effective assistance of counsel includes the right to an effective lawyer during plea bargains (see: Missouri v. Frye and Lafler v. Cooper). And, declaring that “(i)t is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the ‘mercies of incompetent counsel,’” the U.S. Supreme Court held that counsel must inform her client whether his plea carries a risk of deportation,” in Padilla v. Kentucky, 30 U.S. 1473 (2010). These obligations are difficult to fulfill given the severe time constraints of the Washoe County ECR program, if not entirely impossible.
But even more troubling is the blatant disregard the Judge Hardy order shows for ADKT-411’s requirements for judicial independence from the defense functions. As far back as the Scottsboro Boys case [Powell v. Alabama, 287 U.S. 45 (1932)], the U.S. Supreme Court has been on record in questioning 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.”
ABA Principle 1 reflects the aims of the U.S. Supreme Court, explicitly requiring that the “public defense function, including the selection, funding, and payment of the defense counsel, is independent.” In the commentary to this standard, the American Bar Association notes 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.”
That ADKT-411 expressly sought to bring Nevada into compliance with this national standard could not have been more clear, expressly calling the pertinent section: “Independence of the Court-Appointed Public Defense System from the Judiciary.” Noting that the “participation by the trial judge in the appointment of counsel, other than public defenders and special public defenders … creates an appearance of impropriety” and that the “selection of lawyers, other than public defenders and special public defenders, to represent indigent defendants should be made by administrators of an indigent defense program,” ADKT-411 ordered each judicial district to formulate and submit a plan that excludes a judge from the selection of counsel.
Judge Hardy’s administrative order violates the letter and spirit of ADKT-411’s call for independence of the defense function. First, Judge Hardy’s order calls for the “presiding judge, on a case-by-case basis” to determine whether Washoe Legal Services will be appointed. This, despite the Washoe County plan submitted and approved by the Nevada Supreme Court making no mention of Washoe Legal Services, or for that matter, the ECR program. And, if that language in the administrative order was not enough to demonstrate a blatant disregard for ADKT-411, the Judge Hardy order goes on to state that a three judge panel will implement program details “such as appointment of counsel” — exactly what ADKT-411 sought to ban.
The Telling Response from the Washoe County District Attorney
In his July 17, 2012 response, Washoe County District attorney, Richard Gammick, showed his hand by declaring “the purpose of this [ECR] program is to get the Public Defender’s clients out of jail.” But if he were simply caring about getting defendants out of jail to save the county jail costs he could advocate for non-monetary bail practices without the rush to judgment. So, despite the fact that the district attorney apparently believes the individual participating in the program is appropriate for release from custody, he appears to want the defendant’s release to be conditioned on a guilty plea, rather than a consideration of bail or recognizance release (meaning, released without a fee).
But even if one is to take the District Attorney at his word that the purpose of ECR is to get people out of jail, the purpose of the Sixth Amendment remains to protect the defendant against the prioritization of speed over due process. As the U.S. Supreme Court said in Avery v. Alabama, 308 U. S. 444 (1940): “[T]he denial of opportunity for appointed counsel to confer, to consult with the accused, and to prepare his defense could convert the appointment of counsel into a sham, and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” Or, as the Court said in Powell v. Alabama: “The prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant, … must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.”
Sadly, the answer to creating a District Court early case resolution program that complies with Nevada Revised Statutes, the state court’s administrative order ADKT-411, and the ABA Ten Principles can be found in the Reno Justice Courts’ Mandatory Status Conference (MSC) program. On June 29, 2012, the Nevada Supreme Court Indigent Defense Commission heard a presentation by Reno Justice of the Peace, Scott Pearson, details of which can be found here. Every case filed in the Reno Justice Court has a status conference set for seven days after the initial appearance. With the implementation of the MSC program every criminal case filed in the Reno Justice Court is set for a status conference seven days after the initial appearance in all cases except out of custody misdemeanor defendants. Under the program, the District Attorney provides full discovery on those cases they are willing to discuss a plea prior to the MSC hearing. In return, the public defender commits to conveying the plea offer to the client within 48 hours of receiving discovery (also prior to the MSC hearing). Then the assistant district attorney, public defense attorney and defendant must attend the MSC where “the status of the case is discussed including discovery issues and possible resolution if appropriate.”
In the words of Justice of the Peace Pearson, “[t]he MSC program provides indigent defendants meaningful conversations with their appointed attorney days after their arrest with an attorney armed with the discovery and time to investigate issues in the case so the client can make an informed choice to contest the case or enter into negotiations. Under the old system the accused often was afforded only a few minutes with an attorney he just met to decide his fate.”