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Public defender blasts D.A.’s take on witness rent pay

The public defender’s office on Thursday rebutted Clark County District Attorney Steve Wolfson’s assertion that prosecutors don’t have to clue defense lawyers in when paying rent for witnesses until trial.

People facing criminal charges deserve to know if someone testifying against them is having their living expenses covered by the district attorney’s office, Public Defender Phil Kohn said.

And trial is too late for most, he said.

Most criminal cases end in guilty plea agreements — meaning they never go to trial — and defendants never get to explore the validity of the charges against them.

“We have to know what we are bargaining away,” Kohn said.

A Review-Journal public records request revealed that the district attorney’s office has been helping witnesses make ends meet for almost 10 years, dating to December 2004. In some cases the DA’s office paid out more than $1,000 for a victim’s bills.

Kohn said he was troubled by Wolfson pointing to a U.S. Supreme Court opinion to justify why his office wasn’t required to disclose the payments until trial.

The United States v. Ruiz opinion in 2001 says the Constitution doesn’t require the government to hand over evidence that could hurt witnesses’ credibility because a defendant who pleads guilty forgoes the right to a fair trial.

But multiple attempts have been made to clarify the issues raised in that case since then, Kohn argued.

Forgoing a right to a fair trial doesn’t mean forgoing a right to a fair process, the public defender’s office contends.

Lawyers’ obligations to disclose and seek information during the discovery process had been unclear, according to the National Association of Criminal Defense Lawyers.

That group credited the American Bar Association with clarifying the issues with discovery revelations in its 2010 opinion.

Attorneys’ ethical duties are separate from those imposed under the “Constitution, statutes, procedural rules, court rules or court orders,” the opinion said.

The opinion advises that information should be given to the defense as soon as is practical.

Kohn said he doesn’t understand why prosecutors would hold back on solid cases, noting prosecutors are usually going to win anyway.

“Why would you risk a reversal?” Kohn said.

Kohn said his office is researching what can be done in response to the rent payment revelation. He said his office is reviewing cases, including ones that ended in plea deals.

Wolfson is “willing to look at different viewpoints and is always open and willing to revisit the policies and practices of the D.A.’s Office,” he said Thursday in a statement.

Kohn said he was encouraged by that statement.

The Review-Journal investigation showed the DA’s office authorized payments in 68 different instances from a checking account maintained by its Victim/Witness Assistance Center. The center coordinates witness travel, updates victims on case statuses and refers victims to outside help. The district attorney’s office redacted case numbers and other information, so it’s unclear how many different cases are linked to the payments.

The Review-Journal has found one instance when a payment was disclosed during testimony.

The payments were rare considering prosecutors’ caseload, which averages about 65,000 cases a year.

The district attorney’s office says its numbers show there were a total of 56 Victim/Witness payments. Of those, 49 were for rent relocation assistance, and seven fell into the “other” category.

Assistance typically comes in the form of a one-time check payment to a landlord, Chief Deputy District Attorney Thomas Carroll said. The Review-Journal’s investigation reflected the assertion.

The DA’s office count did not include voided payments. The Review-Journal’s analysis did.

Witnesses should be paid $25 for court appearances and, in some cases, a per diem, according to Nevada law. Witnesses from within the court’s jurisdiction are entitled to compensation for mileage to and from court.

Witnesses from outside the jurisdiction are “entitled to reimbursement for the actual and necessary expenses for going to and returning from the place where the court is held.”

Contact Bethany Barnes at bbarnes@reviewjournal.com or 702-477-3861. Find her on Twitter: @betsbarnes.

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