Gideon Alert: Nevada DA seeks way around court-ordered performance guidelines

BY David Carroll on Monday, August 8, 2011 at 12:44 PM

On August 9th, 2011, the Washoe County (Reno) District Attorney will ask the County Board to contract with Washoe Legal Services (WLS) to provide representation to criminal defendants in a reinstituted early case resolution (ECR) program.  The proposed contract is for WLS to handle every ECR case for a single flat fee of $80,000 with no extra funds set aside for investigations.   

It has been well-documented that the particular ECR program in Washoe County fails to adequately protect the rights of the poor.  In 1999, a Nevada Supreme Court Commission on the Elimination of Racial, Gender and Economic Bias in the Justice System retained The Spangenberg Group under a grant from the American Bar Association and the United States Department of Justice, Bureau of Justice Assistance to study the right to counsel in that state. Their report, Indigent Defense Services in the State of Nevada: Findings and Recommendations (December 2000),* acknowledged that the Washoe County ECR program -- though originally intended to be a way to eliminate many non-serious cases from the court dockets -- had been expanded over time to include serious felonies.  

The DOJ/ABA-funded report noted the most troubling aspect of ECR’s operation is that the rules “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 … only have a statement of probable cause.”  This raised the serious concern that plea agreements were being accepted “without a full review of the facts.”  The report questioned whether defendants felt coerced to accept pleas without regard to whether they were guilty, simply because their public defenders – lacking the time, tools and training to look beyond the sparse information at their disposal – were advising them to do so.  The reporters concluded that “one of the most notable effects of the ECR program is that the Washoe County Public Defender Office takes only approximately 30 cases to trial each year.”  That is, thirty cases out of 6,391 in 1999, or a trial rate of less than half of one percent (0.47%). By comparison, a United States Department of Justice, Bureau of Justice Statistics special report, Defense Counsel in Criminal Cases (November 2000), states that the average trial rate in the nation’s 75 largest counties at that time was 5.6%.

The Washoe County ECR program continued to operate as the Supreme Court Commission and right to counsel advocates turned toward pressing problems in Clark County (Las Vegas).  Then, in March 2007, the Las Vegas Review-Journal ran a spotlight series entitled "Conflicted Justice" on the continuing problems of indigent defense throughout the state of Nevada.  The state Supreme Court formed a new Commission on Indigent Defense in April 2007 and just six months later, on November 20, 2007, the Commission issued its Final Report and Recommendations of Supreme Court Indigent Defense Commission.  Based on the Court’s authority to regulate all legal practice in the state and on the recommendations of the Commission, on January 4, 2008, the Court issued an Order: establishing a single standard to be used for determining indigency; requiring that trial judges be excluded from the process for appointing counsel, approving fees for attorneys/experts/investigators, and determining indigency of defendants; requiring the administrative office of the courts to develop a method of collecting uniform statistics on indigent defendants; and, most importantly for this story,  implementing criminal defense performance standards consistent with the NLADA performance guidelines and the ABA death penalty guidelines.

The performance guidelines set out the obligations owed by each criminal defense attorney to each individual client.  That is, each person who is accused of a crime and who cannot afford to hire an attorney is constitutionally entitled to be represented by a public defense attorney who has sufficient time and resources to fulfill the basic requirements of attorney performance on behalf of that person. In over-simplified terms, this means the attorney is able to: meet with, interview, and advise the client; prepare and file necessary motions; receive and review the prosecution’s responses to motions; conduct a factual investigation, including locating and interviewing witnesses, locating and obtaining documents, locating and examining physical evidence; perform legal research; conduct motion hearings; engage in plea negotiations with the state; conduct status conferences with the judge and prosecutor; prepare for and enter a plea or conduct the trial; and prepare for and advocate at the sentencing proceeding when there is a guilty plea or conviction following trial.  Given the new court-ordered performance standards, the Washoe County public defender pulled out of the ECR program because the program prevented its attorneys from having the ability to fulfill their ethical duties to each client, given the haste with which ECR conducted business.  With no public defenders available, the program ceased operations in March 2008.  

[For detailed reading about the varying positions on Washoe County’s old ECR program, read: Carroll letter to Nevada Supreme Court; DA Richard Gammick letter to Carroll; and, Carroll response letter to DA Richard Gammick.]

Public defenders throughout Nevada experience undue political interference because of the lack of independent state or local oversight boards, as required under the ABA Ten Principles of a Public Defense Delivery System.  Indeed, Washoe County, in particular, has a history of letting the District Attorney have a role in selecting the defense attorney.  For example, in 2005 the Washoe County Manager appointed the district attorney to serve as one of three people on the hiring committee (along with the presiding judge and county manager) for the Chief Public Defender.  National scrutiny led to the judge stepping down and an expansion of the hiring committee. However, the district attorney refused to recuse himself despite the obvious conflict of interest. And, at that time, the continuation of the ECR program was a particular focus of the interviews. 

Today, the district attorney is attempting to exert much the same undue political interference by selecting opposing counsel for the ECR program, negotiating a flat fee contract that does not reference the Nevada Supreme Court performance standards and discourages any investigations.  

Any reinstitution of the Washoe County ECR program will, while suffering from all of the same problems noted above, most certainly violate other ABA Ten Principles, most notably the ABA prohibition on flat fee contracts and the requirement for continuous representation.  

Additionally, if WLS cannot negotiate a plea, the case is then assigned to the public defender office.  ABA Principle 7 demands that the same attorney represent the client, whenever possible, throughout the life of the case.  Shifting a client from one attorney to the next inhibits the establishment of an attorney-client relationship, fosters in attorneys a lack of accountability and responsibility for the outcome of a case, increases the likelihood of omissions of necessary work as the case passes between attorneys, is not cost effective, and is demoralizing to clients as they are re-interviewed by a parade of staff.  The proposed Washoe County ECR program anticipates that the Washoe Legal Services attorneys will only handle the ECR offer.  The client and case would be handed off to the public defender office should the case survive ECR.  

Moreover, Washoe Legal Services currently provides representation of children in abuse/neglect cases.  The proposal, if approved, may lead to conflicts of interest by securing guilty pleas for the parent of children they represent, including cases where the ECR charge is the basis for the child's removal.  Here is hoping that the Washoe County Board tables the decision on the reinstitution of the ECR program long enough to compare the details of the proposed plan against national and state standards.

*In full disclosure, David Carroll was a member of The Spangenberg Group in 1999 and was the report’s primary author.

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