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ACLU sues Nevada over indigent defense in rural counties

Updated November 2, 2017 - 2:20 pm

A civil rights organization filed a class-action lawsuit Thursday against the state of Nevada, alleging systemic failures in its public representation of defendants who cannot afford lawyers.

The complaint, filed in Carson City District Court by the American Civil Liberties Union of Nevada, accuses the state and Gov. Brian Sandoval of neglecting their constitutional responsibilities to provide sufficient indigent defense in rural counties.

According to the complaint, the state lacks oversight of multiple rural counties and their system of contracting attorneys to represent the accused. The ACLU asked the court to require Nevada to modify its systems to comply with constitutional protections.

“Although these problems are occurring at the county level, ultimately the state has the responsibility to fix this,” ACLU legal director Amy Rose said in a Wednesday interview.

Sandoval spokeswoman Mari St. Martin said the governor’s office will review the complaint.

“The filing of a lawsuit is disappointing, as the Office of the Governor had previously worked in collaboration with the Supreme Court, the Legislature and other advocacy groups on this issue,” she said in an email Thursday. “Governor Sandoval had taken significant steps to improve rural indigent defense including signing into law a measure which created a rural judicial district. This provides greater access to justice for many living in rural communities.”

Several counties use a system where contracted attorneys are paid regardless of the defense they provide. With a flat fee, Rose said, the lawyers pay for more expenses out of pocket. She said this is particularly true in Nevada’s rural areas, where travel costs over large counties come into play.

Rose said this and several other factors discourage the lawyers from providing a proper defense to people who cannot otherwise pay for legal representation. She said many of the contracted attorneys have private practices and, with a large caseload on their hands, are more likely to devote time to cases where they will get paid more.

The complaint alleges that Nevada’s policies violate the right to a meaningful defense, protected by the Sixth Amendment and the Nevada Constitution, as well as due process rights recognized in the 14th Amendment.

“They are entitled to a meaningful defense, and they’re not getting that” Rose said.

Time for action

Rose cited one of the plaintiffs named in the lawsuit, Diane Davis of Pahrump. When Davis could no longer afford her lawyer, the same lawyer was appointed to represent her in her arson and identity theft cases.

The lawsuit claims the attorney initially planned to help her fight the charges, but when he was appointed as her public defender, he pressured her to take a plea deal.

Other appointed lawyers applied similar pressure to others in her situation, according to the complaint.

“As a public defender with a large caseload, I have to prioritize,” Davis’ current attorney recently said at a court hearing, according to the lawsuit. “Her case is important to me, yes, but so are all of my other clients’ cases.”

Nevada’s current system requires counties with populations above 100,000, such as Washoe and Clark, to have a county public defense office. The rural counties cited in the complaint are White Pine, Douglas, Mineral, Nye, Esmeralda, Churchill, Pershing, Eureka, Lander, Lincoln and Lyon.

Rose said the ACLU realized the scope of the problem in 2008 and since has advocated for a system overhaul.

“This isn’t a new issue,” she said.

She said the state has been made aware of the problems in its system but has failed to show it was going to fix them.

The group most recently supported Senate Bill 377, a bill that — in its original form — would have addressed many of the issues raised in the organization’s lawsuit, she said. The final version of the bill created a commission to study Nevada’s indigent defense issues. The bill was signed into law by Sandoval this summer.

But Rose said the time for studying is over.

“We’ve looked at this problem for about a decade, and now it’s time to do something about it,” she said.

‘They mean well’

A Boston-based constitutional rights group, Sixth Amendment Center, previously has studied Nevada’s disparity in resources available to its rural defendants versus those in Clark and Washoe counties. It highlighted many of the same issues addressed in the recent complaint.

The 2013 report, “Reclaiming Justice,” documents a steady erosion of Sixth Amendment protections within Nevada. State government has no oversight over the way the counties handle their public defense system, the report said, adding that there were no standards the counties had to meet to ensure attorneys hired could adequately provide indigent defense.

David Carroll, the organization’s executive director, said the limited number of resources available to rural Nevada counties makes it harder for them to delegate the appropriate time and care needed for criminal defense cases.

Carroll said Nevada is one of a handful of states that puts the onus of paying for defense on the counties. The rural counties do not have the population to generate the tax revenue needed to fund sufficient public defense. He said in many cases, the states most in need of better indigent defense are the ones that cannot afford it. He doesn’t blame the counties and said he thinks “they mean well.”

“The best they can isn’t what the Constitution calls for,” he said.

Contact Mike Shoro at mshoro@reviewjournal.com or 702-387-5290. Follow @mike_shoro on Twitter.

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