On February 15, 2011, the Nevada Supreme Court adopted a court order requiring all Nevada counties to use a uniform definition of a “case” in reporting right to counsel caseload data. The definition adopted in Nevada for the time being counts as a single case “a single defendant in a single charging document.” The Order expressly notes that this measure “will under report caseload at times when one defendant is charged with separate crimes from separate incidents that may necessitate indigent defense counsel to treat the appointment as multiple cases.” The court agreed with the definition supported by the Conference of State Court Administrators and the National Center for State Courts, first established in their joint 1989 publication State Court Model Statistical Dictionary. That definition instructs administrators to “[c]ount each defendant and all charges involved in a single incident as a single case.” The Court adopted the modified definition of a case because of the current state of case-tracking technology available throughout the state. If Nevada develops the case-tracking capacity to “accurately count cases in line with the national model,” the Court advises that they intend to revisit the newly adopted definition.
The detailed order goes on to define when various cases should be considered “open,” “disposed,” or “pending” and how “warrants,” “return on warrants,” and “parole revocations” should be counted in public defender caseloads. The order also will require monthly reporting of the number of defendants for which a district attorney’s office filed notice of intent to seek the death penalty, juvenile detention hearings, specialty court cases (e.g. drug courts), and other types of specialized work that make up a large part of public defenders’ workload in adequately defending their clients.
In June 2010, this column reported on the stalled efforts by the Nevada Supreme Court, Commission on Indigent Defense to address public defense case overload, particularly in the rural counties. Defender advocates believed then and now that there is overwhelming evidence of public defenders carrying too many cases to adequately meet the parameters of performance adopted by the Court in January of 2009. Prosecutors and county officials made a strong enough case to the Court that the lack of clarity around what defines a “case” and how to track when a case is opened or disposed posed too many issues to say definitively that public defense attorneys in Nevada are overloaded.
It might seem counterintuitive to the fulfillment of Gideon’s promise to engage in a long debate (over seven months) about what defines a “case.” In 2007, for example, a young attorney fresh out of law school in Lyon County reported to the Las Vegas Review Journal that she took over a flat fee contract weeks after passing the bar exam and immediately began juggling 600 cases, 200 of which were felonies (and included rape and murder cases). Does it really matter if those six hundred cases reflected individual defendants, charging documents, or all charges arising out of single incidents? Still, advocates recognized that the Court was unable or unwilling to create case overload procedures, or set binding workload standards, without complete assurance that all criminal justice stakeholders agree that the numbers are what the numbers are. The February 15th Order requires the Indigent Defense Commission to now develop a procedure to be used for data collection and report back to the Court within 180 days.
The Court’s action this week most assuredly will not slow down the pace at which the Office of the State Public Defender (SPD) for rural counties is headed toward extinction. In January 2011, we detailed the long, slow devolution of the rural State Public Defender system in Nevada. This month, the few remaining jurisdictions in the system (most notably Carson City and White Pine County) have been seriously considering moving to flat-fee contracts instead of using the SPD. The Court has set a meeting of the Nevada Task Force for March 11, 2011 to discuss whether the Court should ban attorneys from entering into flat-fee contracts, as Courts in Washington and Iowa have done.