Indigent defendants not getting a fair shake

To the editor:

Your July 12 editorial, "An adequate defense" concludes that defendants in criminal cases in Nevada who cannot afford to hire an attorney are not entitled to an attorney who has enough time to meet minimum standards required of a criminal defense attorney. You suggest that a Hyundai defense "will get you from here to there the same as a Mercedes, albeit with a little less panache."

The Constitution does not require that indigent defendants be provided panache; the Constitution requires that indigent defendants be provided a lawyer who has enough time to create an attorney-client relationship, conduct a basic investigation and develop legal and factual defenses or mitigation. Caseload standards are required to provide the Hyundai defense. Without caseload standards, indigent defendants don't get a Hyundai -- they get a rusted hulk with no motor that doesn't get you from here to there.

Your editorial suggests that the Spangenburg report recommends the hiring of "elite" lawyers rather than "competent" lawyers to solve the problem. Take the most "elite" lawyer in town and give her a crushing caseload and she won't even be competent. Hiring more contract lawyers is not the solution, either. Contract lawyers cannot be expected to handle any more cases than a public defender and are expected to have a private practice while carrying out the contract. Providing oversight with regard to quality of representation and cost-effectiveness is neither cheap nor easy.

Finally, you suggest that everything must be OK because Nevada courts are not releasing dozens of inmates due to inadequate representation. You have reported on some of the more egregious cases where defendants have been imprisoned for years and have been exonerated. Those are the cases that wind their way through the system and if the inmate has sufficient intelligence and perseverance and is lucky enough to get someone's attention, relief may be possible.

Hundreds, probably thousands of poor people have pled guilty to life-altering felonies when a person of means would get a misdemeanor. Why? Because the "pay lawyer" had time and a relationship with his client. How many poor people, who shouldn't be charged at all, chained up in a jury box agree to plead guilty to a misdemeanor to get out of jail because they just met their lawyer and the case needs to be moved? Yes, he had a Hyundai but it didn't have an engine. Ask your reporters who sit in the courtrooms, they'll tell you.

The Spangenburg Report (the third report in more than a decade to identify the crisis in Nevada) demonstrated the need for a large infusion of resources even without the application of performance standards. No one will deny that compliance with minimum standards of performance will require even more resources. When performance standards were first discussed, representatives of the counties immediately agreed that performance standards were a good idea -- all employees should be measured against a standard, they said. Surely, the counties didn't mean that standards of performance are a good idea except for employees who hold the lives of poor people in their hands.

First, the constitutional rights of the people who are going to jail right now need to be addressed. The caseloads of public defenders and contract attorneys must be reduced to meet minimal standards. Next, the systemic issues which drive up caseloads, and thus costs, should be examined. The question of overcharging should be looked at, the use of alternate dispute resolution which has been successfully implemented in civil cases should be considered and alternatives to bringing people into the criminal justice system must be explored.

On a recent court watch, I saw a man sentenced to 30 days for jaywalking. He required a lawyer and a month's worth of housing and food. We are in crisis. The Supreme Court of Nevada is attempting to address this crisis. The Review-Journal should be as concerned about the Sixth Amendment as it is about the First and Second.

Franny A. Forsman

Las Vegas

The writer is a federal public defender.