Chapter 7: Recommendations

Since January 2008, the Nevada Supreme Court has handed down a number of administrative orders aimed at providing a constitutionally adequate right to counsel.  Though the orders have had significant impact on urban Nevada, and in particular Clark County (Las Vegas), the administrative orders have had little impact in rural counties.  The reason for this is not very complicated.  As the largest county in the state, Clark County has the resources and indigent defense structure to respond to the Court’s mandates, whereas rural Nevada does not.

carsoncitymainstreetSo, for example, when the Court ordered the judiciary to be removed from the oversight and administration of indigent defense services in January 2008, Clark County could easily hire an independent assigned counsel coordinator to run the conflict panel.  But the rural counties had no financial ability to hire independent contractors to administer their services.  In many rural counties, two or three attorneys provide all right to counsel services, and hiring a fourth to supervise is cost-prohibitive.  For this reason, the Court accepted what became known as the “Wagner Compromise,” a so-called temporary fix for jurisdictions where there are three or fewer district or limited court judges within a single township.  In these jurisdictions under the “Wagner Compromise,” appointments and approval of trial-related expenses must be carried out by another judge within the district or by the district judge who has served longest in the district.  This temporary fix has become institutionalized over the past four years and, of course, it never remedied that problem of judicial interference exerting undue influence on an appointed lawyer.  In other words, this fix is no solution at all.

We begin our recommendations with a simple observation: Nevada’s rural counties cannot shoulder the state’s financial responsibilities under Gideon and its progeny. An examination of U.S. Supreme Court case law on the right to counsel since 1963 reveals that county responsibilities for funding indigent defense in Nevada are only going to expand in future years unless the state steps in.  Because the right to counsel is a core foundation of individual liberty, the United States Supreme Court has time after time expanded the right to counsel whenever a question has arisen regarding how, when, and where counsel must be provided to an individual facing a loss of liberty at the hands of government.  This has been true regardless of whether the U.S. Supreme Court of the time was viewed as liberal or conservative.  The right to counsel established for felony cases in Gideon now applies as well to direct appeals, juvenile delinquency proceedings, misdemeanors, misdemeanors with suspended sentences, and appeals of sentences resulting from guilty pleas.

Although Gideon required the “guiding hand of counsel at every step in the proceedings (emphasis added),” it took the Court a number of cases to delineate the specific steps in a case at which the right to counsel must be provided.  These steps now include at least police interrogations, post-indictment police line-ups, preliminary hearings, and plea negotiations. It was the Roberts Court in 2008 that extended the right to counsel to its earliest point yet.  When a person is arrested on a criminal charge, the accused is brought before a magistrate to be told of the accusation against him and learn whether and under what circumstances he can be released from jail, if at all.  This appearance before a magistrate often occurs long before prosecution is formally instituted and often even before any prosecutor is aware that a crime has occurred or that a person has been arrested for it.  In Rothgery v. Gillespie County, the Roberts Court reaffirmed two earlier decisions of the Court holding “that the right to counsel attaches at the initial appearance before a judicial officer.  This first time before a court, also known as the ‘preliminary arraignment’ or ‘arraignment on the complaint,’”said the Court, “marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” At that point, the state is obliged “to appoint counsel within a reasonable time once a request for assistance is made.”  The Court made clear that it does not matter “whether the machinery of prosecution was turned on by the local police or the state attorney general,” and it refused to countenance any “distinction between initial arraignment and arraignment on the indictment” even though strongly urged to do so.

The United States Supreme Court has also consistently held that the right to a lawyer means more than just the right to a warm body with a bar card.  In McMann v. Richardson, the Court declared that “the right to counsel is the right to the effective assistance of counsel.”  In 2010 in Padilla v. Kentucky, the Court said “(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.’  To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation.”  And in 2012, the Court made clear with two more cases – Missouri v. Frye and Lafler v. Cooper – that the right to effective assistance of counsel applies not just to trials but also to the plea-bargaining process.  The Frye and Cooper decisions greatly increase the exposure of those governments that are responsible for paying the cost of meritorious ineffective assistance of counsel claims, because the overwhelming majority of cases are resolved through plea deals.  Nevada’s rural counties just cannot keep up with the cost of this ever-evolving right to counsel case law.

Moreover, the U.S. Department of Justice has begun to enforce the right to counsel.  On December 18, 2012, the U.S. Department of Justice announced an agreement with Shelby County (Memphis), Tennessee, to usher in major reforms of the county’s juvenile court system and the method for representing children in delinquency proceedings.  Sweeping changes are afoot, including systemic safeguards such as independence, reasonable caseloads, attorney performance standards, and training for the juvenile defense function, among others – basically the majority of the standards envisioned by the ABA Ten Principles.  Should the Department of Justice turn next to rural Nevada, it could become very costly for the counties to try to defend a federal lawsuit.

For all these reasons, the 6AC makes a single recommendation:

Recommendation #1:  A state-funded public defender commission is established to oversee and administer all right to counsel services in every county other than those that are required under Nevada Revised Statutes 260.010 to have a local public defender agency.  The commission is authorized to establish and administer rules and standards for the effective and efficient delivery of indigent defense services in those counties that it oversees.

The Nevada Supreme Court should either make permanent the indigent defense commission envisioned in the January 4, 2008 ADKT-411, but exclude those counties required to have a public defender under Nevada Revised Statutes 260.010 (Clark and Washoe Counties), or the Court should actively engage the legislature to do so.  Several states have similar systems.  For example, the Oklahoma Indigent Defense Services oversees and administers services in rural counties, while Oklahoma County (Oklahoma City) and Tulsa County (Tulsa) remain outside of the state system.  In Kentucky, Jefferson County (Louisville) remains independent of the Kentucky Public Advocate.  And in Tennessee, both Davidson County (Nashville) and Shelby County (Memphis) operate independent of the state system, although both receive some state funding.

Though it is always best to have local stakeholders determine the most appropriate make-up of such commissions, we note how two states have set up their Commissions:

  1. Louisiana Public Defender Board: La R.S. 15 § 146 creates a 15-member commission.  Appointing authorities: Governor (2 appointees); Chief Justice (2 appointees: one a juvenile justice expert; one a retired judge with criminal law experience); President of the Senate (1); Speaker of the House (1); Four Deans of accredited law schools (Louisiana State University, Loyola, Southern, and Tulane – 1 appointment each); State Bar Association (2); Louis A Martinet Society (African-American Bar: 1); Louisiana State Law Institute’s Children Code Committee (1); and, the Louisiana Interchurch Conference.  “Persons appointed to the board shall have significant experience in the defense of criminal proceedings or shall have demonstrated a strong commitment to quality representation in indigent defense matters.  No person shall be appointed to the board that has received compensation to be an elected judge, elected official, judicial officer, prosecutor, law enforcement official, indigent defense provider, or employees of all such persons, within a two-year period prior to appointment.  No active part-time, full-time, contract or court-appointed indigent defense provider, or active employees of such persons, may be appointed to serve on the board as a voting member.”
  2. North Carolina Commission on Indigent Defense Services: NC G.S. § 7A-498.4 creates a thirteen-member commission.  Appointing authorities are as follows: Chief Justice (1 appointment); Governor (1); Senate President (1); Speaker of the House (1); North Carolina Public Defenders Association (1); State Bar (1); North Carolina Bar Association (1); NC Academy of trial lawyers (1); NC Association of Women Lawyers (1); the Commission makes three more appointments. “Persons appointed to the Commission shall have significant experience in the defense of criminal … or shall have demonstrated a strong commitment to quality representation in indigent defense matters. No active prosecutors or law enforcement officials, or active employees of such persons, may be appointed to or serve on the Commission. No active judicial officials, or active employees of such persons, may be appointed to or serve on the Commission, except as provided in subsection (b) of this section. No active public defenders, active employees of public defenders, … may be appointed to or serve on the Commission.”

In large geographic areas with relatively small populations, staffed public defender offices are often not the best method for delivering services.  The new commission should therefore be authorized to administer, set standards for, and oversee a rural assigned counsel and/or contract attorney system, should the commission deem these to be the most suitable for a particular jurisdiction.  This is precisely what Montana does, because the statewide commission determined that most of rural Montana only has enough cases to merit hiring private attorneys to handle the cases on a hourly pay or contract basis.  With a coordinated rural system, a single state commission can gauge the ability of private attorneys to appropriately handle cases in more than one county, thus maximizing the efficient use of the relatively few attorneys in rural Nevada who are willing to do this work.  Such a commission may even be able to contract with the Clark County Public Defender to provide training for the hourly or contract attorneys, so as not to reinvent the wheel nor have duplicative services in a state where most of the cases arise from a single jurisdiction.

The problem, of course, is what should be done with the current State Public Defender office.  The 6AC recommends that the State Public Defender office be brought under the auspices of the new commission and turned into a rural appellate office.  In this way, Nevada can ensure that every indigent client receives a new and independent attorney to handle the direct appeal.  This location can likewise serve as the central administrative office for the entirety of the rural trial and appellate system.  A central staff can pay vouchers, administer contracts, handle attorney-qualification certifications, provide supervision, be a state defender help desk, etc.

Download the full report: Reclaiming Justice: Understanding the History of the Right to Counsel in Nevada so as to Ensure Equal Access to Justice in the Future

Photo credit: Carson City, Main Street (c. 1870). Nevada Historical Society.