Nye experience highlights system flaws

PAHRUMP -- If not for Henderson defense attorney David Neely, some court proceedings in Nye County might come to a standstill.

The county so relies on Neely to take indigent cases that he earned $150,000 in fees during a recent one-year period. That was without ever going to trial.

A stunning 40 percent of that money, or $60,000, came in the form of billable hours spent driving 150 times from Henderson to Nye County. He was reimbursed $10,000 for mileage.

Though the state created a public defender office for rural counties in 1971, it pays for only about 20 percent of the indigent cases in those counties. In fact only four counties and Carson City even use the office. Pershing and Humboldt counties this month became the latest to switch to a local option.

David Carroll, research director for the National Legal Aid and Defender Association in Washington, D.C., puts it simply: "The state system (in Nevada) is failing."

State Public Defender Steve McGuire agrees: "I certainly think that's apparent. I hope something is done about it."

Both men are part of a Nevada Supreme Court commission examining ways to improve the state's indigent defense system. It was formed after a Review-Journal series in March detailed flaws in Clark County's system of defending the poor.

At a meeting today, the panel is expected to discuss performance and caseload standards for public defender systems across the state.

Citing concerns over cost, quality, and turnover rate, Nye County left the state public defender system in 1993. At the time, one lawyer covered the entire county, which is the third largest geographically in the continental United States.

Currently, Nye employs a four-lawyer firm based in Pahrump on a flat-fee $490,000-a-year contract for an unlimited number of indigent cases.

The contract violates several American Bar Association guidelines for indigent defense delivery. It doesn't provide allowances for travel or hiring of investigators, nor does it limit the amount of privately retained work the firm may do. No extra compensation is paid for work on serious felony cases such as murder and sexual assault.

"The contract's enough to pay the rent and bills, and then we can go for the gravy, which is the private work," said Jason Earnest, the firm's head lawyer.

Earnest said his firm shuttles between the county population center, Pahrump, and the county seat, Tonopah, which are 170 miles apart.

The county's district courts have the most cases per capita of any system in the state. And the load in Pahrump Justice Court grew 35 percent last year to 1,318 cases.

While its contract firm handles a large volume of Nye's indigent cases, a significant number go to attorneys who take cases in which Earnest's firm has a conflict. As the number of multi-defendant cases with the potential for conflicting testimony increases, so too do the number of conflicts.

To handle those cases, enter Neely and a handful of private attorneys who get $100 an hour. The cost this year is $371,000, 75 percent of the amount Earnest's firm gets.

"It's not really a matter of having an ideal situation," said Pahrump Justice of the Peace Tina Brisebill. "It's a matter of getting who we can get."

Some appointed attorneys in Nye have a history of problems.

Jose Carlos Pallares, who was assigned a drug trafficking case last year, has been disciplined at least three times by the State Bar for misconduct. Documents show he has battled depression, anxiety, and alcohol. Pallares didn't return phone calls seeking comment.

Dwight Duncan, a lawyer appointed to indigent cases in the late 1990s, was disbarred in 2002 for mistreatment of clients and erratic behavior. Duncan is wanted on a bench warrant stemming from a 1998 DUI conviction because he failed to complete community service.

Brisebill said Neely has worked out well: "We depend on him. Not many attorneys want to come up here."

Neely, a part-time public defender based more than 200 miles from the Tonopah courthouse, was assigned about 150 cases in Nye County between May 2006 and May 2007, according to a Review-Journal analysis.

He billed 1,500 hours on these cases, 600 of those for travel. On some days, he billed for round-trips both from Henderson to Pahrump and Henderson to Tonopah, distances totaling nearly 700 miles. Neely got about half of all conflict appointments in Nye County that year. Twelve other attorneys, many from Clark County, handled at least one case.

Neely's Nye County cases made up about 75 percent of his overall practice.

"I like the small-town atmosphere," the North Carolina native said. "I'm happy to help."

Neely admits he hasn't taken a case to trial in over a year, partly because of his caseload.

"I do as much as I can, and the cases just work themselves out," he said, referring to the plea bargains.

District Judge John Davis, who has appointed Neely frequently, said, "I can't remember him ever going to trial."

But Davis said rampant plea bargaining is part of a larger trend: "We used to do a lot of trials when I came on the bench in 1990. The pendulum has swung so far in the other direction. We hardly do any now."

In December 2004, the court system's indigent defense woes were exposed by a case with 14 co-defendants accused of running a cockfighting ring.

Twelve of the 14 qualified for public defenders. The contract firm supplied one lawyer, but 11 conflict defenders had to be found. When that didn't happen, two defendants were hastily paired up with one defense lawyer, despite the fact each defendant's testimony might implicate the other.

"That goes against all ethical standards promulgated by national legal authorities," Carroll said.

After a seven-hour preliminary hearing, prosecutors offered the defendants a plea deal.

Carroll said rural counties can't go it alone much longer on indigent defense: "I believe there really needs to be state oversight of this."

He favors a statewide public defender commission, such as those in 33 other states, to oversee indigent defense operations.

State Public Defender McGuire said that a statewide commission would help his office come out of the shadows to receive the funding it needs.

Another option, according to Carroll, is to expand and regionalize the public defender offices in Clark and Washoe counties to serve rural counties in Northern and Southern Nevada.