New problems for indigent defense


Only two weeks ago, the Nevada Supreme Court ordered sweeping changes to the state's slipshod system of assigning private attorneys to poor criminal defendants. The modifications held the promise of bringing oversight and accountability to a network that was lacking in both -- and compromising a suspect's constitutional right to competent counsel in the process.

But in the two weeks since, Clark County officials have moved away from the spirit and intent of that order, screening attorneys in secret and awarding taxpayer-funded contracts on a random basis.

The actions were spurred by a 2007 Review-Journal investigation, which found that judges were too involved in assigning attorneys to defendants, creating conflicts of interest in their own courtrooms; that private attorneys' qualifications were not being adequately screened before they were awarded contracts; and that no one was adequately monitoring the performance of contract attorneys.

The Supreme Court formed a commission to examine the shortcomings and recommend improvements. That commission met in the sunshine and vigorously debated ways to protect defendants' rights and make attorneys answerable to their clients and the taxpayers who compensate them.

On Jan. 4, the court adopted most of the panel's recommendations, declaring that judges cannot be involved in the assignment of public defenders and establishing performance standards for attorneys. Justices gave jurisdictions until May 1 to develop a system for selecting and supervising these contract attorneys.

The order surprised Clark County officials, who had already invested several months in improving their attorney application and selection process. But they decided to move forward with a closed, problematic process, anyway.

For starters, Chief District Judge Kathy Hardcastle remained the leader of the effort, despite the Supreme Court order against judicial involvement. And upon forming a five-person attorney selection committee, she had members evaluate more than 100 applications for indigent defense contracts in secret, without public notice, using qualification standards that were never made public or subjected to the review of elected officials beyond Judge Hardcastle.

That prompted Federal Public Defender Franny Forsman to remove an attorney in her office from the selection panel. "My concerns result from the degree of judicial involvement and the lack of public participation or notice of the manner in which the selection process was created," she wrote in a Jan. 11 letter to Judge Hardcastle.

Then, after narrowing more than 100 applications to 51 lawyers, the selection committee decided to make the final cut to 35 -- and award about $1 million in taxpayer-funded contracts that run through June 30 -- using a bingo wheel. Around and around the wheel spun Wednesday, with a collection of courthouse employees pulling names scribbled on scraps of paper, no applicants or outside observers present.

The Supreme Court wanted contract attorneys assigned to specific courtrooms at random. The bingo wheel would have been a perfectly acceptable way of accomplishing that -- provided the selection committee had already picked the 35 best candidates for the contracts, those candidates had been made public and provided notice of the draw. By putting 51 names in the bingo wheel, the draw decided much more than courtroom assignments -- it determined who won contracts. And with no public notice and no outside witnesses, attorneys and taxpayers have reason to question the integrity of the draw.

There's a reason state lotteries put their number draws on television or on Webcasts: so folks who buy tickets won't think the fix is in.

Then again, it isn't surprising that Judge Hardcastle worked to keep the public in the dark. Last year, she testified against a bill that would have protected the public's right to examine the case files of civil lawsuits. Openness, she told the Legislature, can be "difficult to deal with."

This entire process screams out for openness. Gary Peck, executive director of the American Civil Liberties Union of Nevada, says he is considering filing a complaint with the attorney general's office.

"The ACLU believes that the secretive and closed manner in which the committee is proceeding violates Nevada's open meeting laws, which require that any body deliberating and/or making recommendations about the expenditure of public funds must be open to the public. Certainly, the awarding of contracts for indigent representation falls within this requirement," Mr. Peck, who served on the Supreme Court's Commission on Indigent Defense, wrote in a Jan. 14 letter to Judge Hardcastle.

This lack of transparency smacks of the circumstances that prompted the Review-Journal investigation in the first place.

If the attorney general's office doesn't make Clark County start from scratch in awarding current indigent defense contracts, the county needs to completely revamp the selection and assignment process for contracts starting July 1. Attorney qualification standards must be made public, selection committee meetings must be properly noticed, and contract recipients must be named before courtroom assignments are made at random.

And judges -- especially Judge Hardcastle -- must be kept out of the entire process.

 

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