Monday, January 10, 2005
Copyright © Las Vegas Review-Journal

ACQUITTALS CLIMB: Public defender pans policy

DA Roger defends `five-trial rule' as tough on crime, good for prosecutors

The Clark County public defender's office had a record number of acquittals at trial last year, but Public Defender Phil Kohn isn't ready to take all the credit.

Instead, Kohn said last week that a controversial policy at the Clark County district attorney's office is at least partly behind his office's record 24 acquittals in felony trials in 2004.

The policy in question, known informally as the "five-trial rule," requires each prosecutor take three to five cases to trial a year.

Kohn said the policy has further clogged an already congested court system, costing taxpayers money, and increased the risk of sending the wrong people to jail.

"The office of the district attorney is there to protect the public and to make sure justice is done," Kohn said. "The number of trials should be irrelevant."

But District Attorney David Roger said the criticisms are inaccurate, and he makes no apologies. The attempt to get prosecutors to take more cases to trial is part of an aggressive plan to increase the prosecution of Southern Nevada criminals and sharpen the trial skills of Clark County's well-paid prosecutors.

"Some judges don't like it, and some public defenders don't like it," Roger said. "My obligation is to protect the community, not make things easier for certain individuals."

The increased number of acquittals for the public defender's office is not just attributable to the five-trial rule.

Long criticized for its shoddy representation of poor criminal defendants, the public defender's office has undergone a transformation under Kohn.

The office hired a training officer to tutor attorneys monthly on trial skills. And, under Kohn's direction, the office's attorneys have taken a more aggressive approach on behalf of their clients.

"I think the people we are hiring are higher skilled, and I think there is a new philosophy in this office about going to trial," Kohn said. "In the past, there have been disincentives that discouraged people from it, but it is the client's choice. It is not the attorney's choice."

Last year, the office had 24 outright acquittals in felony cases, an increase from 2003 when the office had 15 acquittals at trial. In 2002 and 2001, the office had seven acquittals each year.

The trend mimics the overall number of acquittals secured not just by public defense attorneys, but private defense attorneys as well in the Eighth Judicial District Court.

According to statistics provided by the court's administration, overall acquittals for felony and gross misdemeanor trials have risen steadily since 2002. That year, there were 20 acquittals; in 2003, there were 27 acquittals; and in 2004, there were 33 acquittals.

In an interview last week, Roger said he took office with the belief that the district attorney's office needed to take more cases to trial. He said statistics show that in 1989, when Clark County had far fewer judges and fewer prosecutors, the district attorney's office took about 190 cases to trial.

By 1995, the numbers started to drop. And by 1999, the district attorney's office tried 109 cases for the year.

Roger said that is too few trials and too many plea agreements. In consulting Sheriff Bill Young, Roger determined the district attorney's office needed to be more aggressive.

"My goal was to aggressively prosecute cases and work with Sheriff Young to get our crime numbers down," Roger said. "We are going to try more cases, and we are going to have stronger negotiations."

In 2003, the district attorney's office tried 203 cases, an 86 percent increase from 1999. In 2004, the office tried 193 cases.

"What we started to see is defendants starting to plea straight up, without any deals more often," Roger said.

Court administrators estimate that when a criminal case goes to trial, the cost of adjudicating the case usually rises by $10,000 to $20,000.

The district attorney said he recently received a letter from Las Vegas police's Repeat Offender Program, which investigates and arrests longtime criminals in the valley.

According to the ROPE team, the number of career criminals identified as habitual criminals by judges in Clark County has increased dramatically, meaning they face much longer jail sentences.

Roger believes that increase is directly related to his office's decision to take more cases to trial and take tougher stances in plea negotiations.

But Kohn is concerned some prosecutors are taking the wrong cases to trial just to meet a quota, which could determine whether or not they get an annual raise.

"We are getting offers that are ridiculous," Kohn said. "Our clients are just not taking them.

"I had a deputy who had a client who was willing to plead to burglary, knowing he was going to prison," Kohn said. "They also had him charged with possession of a burglary tool, which is a gross misdemeanor, and they (prosecutors) refused to drop it. That's always done."

Kohn suspects the prosecutor wanted to take the case to trial to meet his annual quota.

"It happened at the end of November, and my deputy was sure it was a five-trial case," Kohn said. "Why would you not drop it?"

The American Civil Liberties Union of Nevada also criticized the five-trial policy last week.

"Prosecutors are supposed to make decisions based on a careful consideration of the facts in each case they review, not based upon the need to make quotas that are imposed on them by their bosses," said Gary Peck, executive director of the ACLU of Nevada.

"The five-trial rule does not promote that kind of judicious decision-making and undermines any pretense to fairness in the way individual defendants are treated in the criminal justice system," he said.

But Roger said raises aren't based solely on the number of trials a prosecutor performs.

"The county manager directed department heads to award salary increases based on merit," Roger said.

"In the past, everyone got the same pay. We have taken a different look at what we are doing. We are rewarding people who are working hard, but it doesn't matter how many trials they've done. As long as they are in there swinging and working hard, they are going to get their pay raises."