The Indigent Defense Commission is expected to present its findings to the Supreme Court in December, at which time the court may ask the 2015 Legislature to create and fund a system of public defense attorneys for all counties other than the more densely populated Clark and Washoe counties.
The commission hired the Massachusetts-based Sixth Amendment Center to prepare a 44-page report on the history of indigent defense in Nevada, the current state of affairs and recommendations for improvements.
The Sixth Amendment of the Bill of Rights guarantees: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … and to have the assistance of counsel for his defense.”
Nevada’s 1864 Constitution also provides that “in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel” and that he may not be deprived of “life, liberty, or property, without due process.”
Until 1963, the right to counsel was widely interpreted as permissive, meaning a defendant could hire an attorney if he could afford one, but in the case of Gideon v. Wainwright the U.S. Supreme Court mandated that states — not counties or local jurisdictions — must assure competent counsel to poor people accused of felonies.
But unlike other states, Nevada was one of the first to pass a law requiring that the poor be provided paid lawyers. The 1877 law said an appointed attorney was entitled to receive from the county treasury “such fee as the Court may fix, not to exceed fifty dollars.”
The Sixth Amendment Center report — published a year ago under the title “Reclaiming Justice” — concluded that the Gideon decision meant “that the right to a lawyer means more than just the right to a warm body with a bar card.”
As an example of the difficulty in providing “effective” counsel on a shoestring budget, the report augers into the spending reported to the Indigent Defense Commission by Douglas County for the year 2007.
Douglas reported spending more than $450,000, which paid for two full-time attorneys and one part-time. But they handled 202 felony cases including one murder case, 3,249 misdemeanors, and 341 juvenile delinquency cases.
That averaged less than $120 per case to pay the attorney fee, overhead and all of the out-of-pocket expenses.
“One hundred and forty years ago the Nevada Legislature first set attorney compensation at a rate not to exceed $50 dollars per case,” the report noted. “The relative historical value of $50 in 1874 is estimated to be about $12,200 in 2007 dollars, yet Douglas County public defenders in 2007 earned less than 1% of that.”
That was the same year the Las Vegas newspaper looked into the caseload and payments to the Lyon County public defender. Jesse Kalter, 27, who had passed the bar exam a few weeks before, was handed a $105,000 contract with the county and 600 indigent cases, about 200 of them felonies. Add to this the fact public defenders in Lyon must drive 400 to 600 miles a week between the courthouses in Fernley and Yerington, the newspaper account states.
According to the American Bar Association standards, no attorney, no matter how experienced, should handle more than 200 felonies in a year.
Then there is the aggressiveness of the defense to be considered. The Sixth Amendment Center noted that in Douglas County of the nearly 4,000 indigent cases only four went to trial.
Atop that, it was noted that one of the key grounds for an appeal is “ineffective assistance of counsel.”
“But, in rural Nevada, the same attorney who represented the defendant at trial is also responsible for handling the direct appeal,” the report notes. “What are the chances that
overworked, unprepared, financially conflicted, public defense attorneys will ever raise ineffective assistance of counsel claims against themselves in a direct appeal?”
The center’s report argues that rural counties simply are not financially capable of providing the kind of effective defense counsel that is necessary and there should be a state-funded public defender office that could cover all of the rural counties.
No one is yet estimating just how much such an office might cost the state to provide.
What price justice? And who pays the tab?