Reasonable doubt

MATT O'BRIEN

 

Las Vegas City Life

 

November 22, 2007

 

They're dragged into the courtroom, hands and waists chained, like fish on a stringer. They're dressed in prison blues, orange tube socks and pink slippers -- not tailored suits, nylon socks and shiny loafers. Their hair is alive. Their eyes are dead.

 

Most of them have no education beyond high school. Some of them can't read. Some of them don't speak English. They're alcoholics, drug addicts and mentally ill. Many of them have black or brown skin.

 

They're accused of stealing, cheating at cards and dealing drugs. Of driving drunk, prostitution and beating their wives. Of armed robbery, rape and murder. Unable to afford an attorney, they're appointed one by the court.

 

That's the man in the dark suit or the woman in the jacket and long skirt. They may be dressed better than their clients, but they look just as defeated. They're cradling an armful of case files -- and working hundreds of others. They may be only weeks out of law school. And they may be representing all the defendants in the courtroom -- the whole stringer of fish.

 

"It's like triage," said one public defender, leaving the courtroom exhausted. And that auctioneer's voice: "What's your name?" and "How old are you?" and "How far did you go in school?" and "Do you understand English?" and "What's your plea?" That's God. That's the judge. He may be recently elected and have no experience on the bench. He may have heard more than 50 cases already today. He's most likely white -- 15 of the 16 District Court judges who hear criminal cases are.

 

"When I was doing death-penalty work, so many times the only black face in the courtroom was my client," said Clark County Public Defender Phil Kohn. "It was very disconcerting to me -- and I can only imagine how disconcerting it must've been to my client. All the lawyers were white. All the judges were white. All the jurors tend to be white.

 

"We know that we have a right to a trial by our peers; that's what the Constitution tells us. But I imagine that my clients must've felt like they were in a foreign country."

 

Do these defendants -- these fish flopping their way through the public defender system -- stand a chance? Are they being taken seriously? Are they getting the representation guaranteed in the Constitution?

 

"The answer to that is, 'No!'" said Franny Forsman, Nevada's federal public defender since 1989. "Representation under the Sixth Amendment doesn't just mean a name on the docket. It doesn't mean a lawyer who has a caseload of 300 and can't possibly give the case the time that it needs. That's not what the Sixth Amendment means."

 

Of course they're not getting the representation guaranteed in the Constitution -- and they haven't been for a long time.

The Clark County public defender system, which is more than 40 years old, has a hideous past and a horrible reputation. For several years, the public defender's office didn't have a training program. Attorneys fresh out of law school were given death-penalty cases. They'd come into the office at 11 a.m. and leave at 2 p.m. -- with long lunches.

 

Plea-bargain percentages were high -- few cases actually went to trial -- and golf handicaps were low.

 

"When we first got involved in the issue, the Clark County Public Defender's office was an absolute and utter travesty," said Gary Peck, executive director of the ACLU of Nevada. "There was a real failure of leadership from my point of view, which manifested itself in a number of ways."

 

Defendants were asked if they were guilty and to take lie detector tests, said Peck. They rarely saw their attorney, often meeting them for the first time in court. Case files weren't even cracked.

 

"There were a lot of problems that made it clear that the office was badly in need of an institutional fix," said Peck.

These problems were highlighted in a 2000 report by the Spangenberg Group, a research firm based in Massachusetts. The report, Indigent Defense Services in the State of Nevada: Findings and Recommendations, found that poor defendants in Nevada weren't given adequate representation and that public defender's offices throughout the state lacked independence.

The report recommended that the state take a more active role in public defender systems and create a commission to oversee the systems.

 

A 2003 report by the National Legal Aid & Defender Association, a nonprofit organization that advocates for equality in the justice system, found that the Clark County Public Defender's office had an unhealthy institutional culture and its caseloads were much higher than the national standard. The report showed that new felony cases in the office went from 8,736 in 1996 to 11,611 in 2001, without a proportionate increase in staff, and that its felony caseloads were above the national standard for nine years (1993-2001) in a row.

 

An attorney in the juvenile division had 1,400 cases in one year, said David Carroll, principal author of the Spangenberg and National Legal Aid & Defender Association reports. The national standard for a juvenile attorney is 200 cases a year.

"I think it's fair to say that the American value of the right to counsel was nonexistent in Nevada," said Carroll, who spent weeks in the state studying public defender systems. "They had bodies representing people, but they weren't doing what we believe needs to be done to properly defend poor people. They were just triaging justice. Clients were put on an assembly line essentially, where they were processed through without anyone really paying attention to the facts of their case."

 

The National Legal Aid & Defender Association report recommended that Clark County increase staff in the public defender's office, develop a training program and build a relationship with the community.

 

In the wake of the National Legal Aid & Defender Association report, changes were made in the Clark County public defender system. Marcus Cooper, who replaced longtime Public Defender Morgan Harris, stepped down in October 2003. Kohn stepped in. And slowly, it seemed like things were improving.

 

The county increased staff in the juvenile division from two attorneys to 13, reducing caseloads from more than 2,000 to about 400. A team of appellate attorneys was formed to handle appeals. Social workers were added to the system.

 

Additionally, Kohn -- as recommended in the report -- developed training and mentorship programs. He seemed to successfully change the culture of the office.

 

"The reputation of the office has changed significantly," said Thom Reilly, county manager from 2001 to 2006. "The reputation five or six years ago was that attorneys got into the office around 11 o'clock and left at 2. That's not the case anymore. They are seen as very hardworking. They also take on controversial issues and are very vocal.

 

"Having said that, I still don't think that substitutes for staffing issues. Caseloads speak for themselves."

 

With the Clark County public defender system, there's always a catch. For every step forward, it takes one back. In 2006, the public defender's office had 14,362 new felony cases. This year it's projected to have 18,600 (with only one new attorney). Attorneys are handling more than 400 cases a year, said Kohn.

 

"The people in our office are incredibly committed to their work," he said. "But they're frustrated because they have really high caseloads and they want to do the best they can for every client they have. However, when you're dealing with over 400 clients a year, there's a limit to how much time you can give each client."

 

The increase in cases can be partly attributed to the More Cops Initiative. In effect since Oct. 1, 2005, it has put 254 more cops in training and on the streets -- and Metro hopes to hire another 196 cops before June 30, 2008.

 

"Did they not think that these police officers were going to arrest people?" said Nevada Supreme Court Justice Michael Cherry, a former public defender and District Court judge. "It was very shortsighted on the part of everybody to say, 'We're going to have more police officers, but we're not going to have more district attorneys and public defenders.' How did they think we were going to prosecute and defend all these cases?"

 

As attorney Dayvid Figler pointed out, you can't talk about the public defender's office without talking about the district attorney's office. The Clark County DA's office has a reputation of filing every case -- regardless of evidence -- and piling on charges (or "overcharging").

 

For example, two teenage girls walk into a department store and steal $30 worth of merchandise. They're arrested and charged with multiple felony counts, including felony burglary.

 

That kind of thing happens all the time in the system, defense attorneys said.

 

"It's a snappy-sounding phrase: 'Prosecutors are overcharging,'" said District Attorney David Roger. "But nobody has really explained to me what it means. Under Nevada law, we are required to file all charges that fit within our theories in the criminal complaint. If we have not filed certain charges at the time of the trial, we can't ask the court to add those charges later. We've got one shot at doing it.

 

"So when you're processing so many cases, you look at the facts of the case and you file the charges that you believe you can prove beyond a reasonable doubt."

 

Roger, who plans to run for re-election in 2010, denied that politics -- wanting to look "tough on crime" -- plays a part in the screening and charging processes.

 

Additionally, this spring, a six-month Review-Journal investigation found major flaws in the contract attorney system (which farms out cases to private lawyers when the public defender's office has a conflict of interest). Two contract attorneys made more than $400,000 from November 2005 through December 2006 -- and defendants still didn't get proper representation, the newspaper found.

 

"It's a perfect storm that results in efficiency at the expense of the Sixth Amendment," said Forsman. "You've got a DA who is charging everything -- and charging it way over what they really expect to be able to get out of the case. You've got a public defender and contract attorney system that is overloaded and doesn't have enough time to litigate cases. And then you have a court system that just processes the cases, in and out. You've got the perfect storm that ensures that poor people aren't getting the representation they deserve."

 

Seeing the storm on the horizon -- and perhaps lawsuits -- the Nevada Supreme Court created a commission in April to study the state's public defender systems. The Indigent Defense Commission, which include advocates, administrators, public defenders, judges and justices, found pretty much what everyone else had found: Attorney caseloads are too high and performance standards too low.

 

The commission is polishing up its report, which will be sent to the state Supreme Court, and plans to recommend caseload and performance standards. The court will meet Dec. 14 to discuss the report.

 

Does this sound familiar? Another report? More recommendations?

 

But will these recommendations ever make it into the courtroom?

 

"Maybe that was true before, that nothing happened, but I doubt that's going to be true with me on the Supreme Court," said Cherry, chairman of the commission. "You've got two new sheriffs on the court, me and [fellow Supreme Court Justice Nancy] Saitta, and we're both familiar with the system. [William] Maupin, the chief justice, has criminal experience.

 

"We've got some good people on the court who know what it's like to represent indigents." Nonetheless, pessimism exists.

 

Clark and Washoe counties have prepared a "minority" report, arguing against adding more public defenders to the systems (and thus reducing caseloads). The report says an independent study should be done before adding staff and that the money is needed in other departments.

 

"I'm very concerned about the caseload standards that are being proposed right now without any research whatsoever," said Clark County Assistant Manager Elizabeth Quillin, who worked in the public defender's office from 1999-2002. "They're talking about proposing caseload limits of 150 to 192 cases per attorney per year. That basically works out to three or four felony cases a week. I think that's ridiculously low."

 

Quillin, who said the county doesn't have a problem with the proposed performance standards, added that the child welfare system and University Medical Center are in more desperate need of the money."You tell me," she said. "Is it more of a priority to reduce caseloads for the public defender to an unprecedented level or fund the neonatal unit at UMC? What about these poor families that need health care? Where are they going to go?"

 

Reilly, now vice president of social responsibility for Harrah's Entertainment, said he understands the county's predicament and doesn't think he'd handle it any differently. He added that if the Supreme Court makes recommendations, it should also have a plan for funding them."Anyone can sit back and issue edicts and recommend staffing standards if they don't have to figure out how to fund them," said Reilly. "What a great job. But it's meaningless."

 

When asked about funding, Cherry said, "That's where I don't know what's going to happen."

 

Roger is also a bit disenchanted with the state Supreme Court and the Indigent Defense Commission. He said his office asked to contribute to the commission, but was told it wasn't needed. "Prosecutors haven't had any say in this," said Roger, who agrees with the county that an independent study should be done before adding staff. "I'm a prosecutor. I deal in facts. I believe that when you make a decision, it should be based on facts and nothing else. You can have special-interests groups come in and posture about lawsuits. You can have people come in and complain that they're not getting fair representation. But if you're going to make these types of decisions, do an independent analysis and then make a call."

 

Peck, Carroll and other advocates are disturbed by the dissension. They say both the caseload standards and performance standards are needed to significantly change Nevada's public defender systems. One won't work without the other."We would be profoundly disappointed if the court were not to pass and enact both the performance and caseload standards," said Peck. "From my perspective, enacting the performance standards without the caseload standards would be an empty gesture, because without the caseload standards they will be setting up indigent defenders for failure. There is simply no way that attorneys can meet the performance standards if they are operating under crushing caseloads."

 

Peck said Clark County should be more concerned about constitutional issues than funding issues. He added that failure to fix the system could lead to lawsuits.

 

"Litigation is expensive and time-consuming," said Emily Chiang, a staff attorney for the national ACLU, adding that the civil liberties group has filed several lawsuits related to public defender systems. "Everyone would prefer that the county, rather than spend money combating litigation, spend it properly providing legal services to those who are constitutionally entitled to them. I think that's in everyone's best interest.

 

"But if it becomes clear to us that they will continue to add police officers without providing the public defender's office or the conflict defenders with the resources they need, we'll start to evaluate things more seriously."

 

Holly Thomas, an assistant counsel with the NAACP Legal Defense and Educational Fund, said her office is also monitoring the situation.

 

Indeed, it sometimes seems like it will take an act of God (not a judge) -- or a lawsuit -- to change the system. But Forsman, who applied for the Clark County public defender position in 2001, said something else is needed: courage.

 

"The idea of reform is only the first step," she said. "The next step is that the people in and around the system -- the judges, the defense attorneys, the County Commission -- have the courage to carry it out. It's not going to be easy, because we have more than 30 years of poor law practice behind us and it's going to require a major change for everyone in the system. But it needs to be done. What's happening in those courtrooms just isn't right."

 

Matt O'Brien is a CityLife staff writer. He can be reached at 871-6780 ext. 350 or mobrien@lvcitylife.com.