ACLU files long-threatened lawsuit alleging Nevada’s overstretched rural public defender system is unconstitutional

By Michelle Rindels

https://thenevadaindependent.com

The American Civil Liberties Union of Nevada is suing the state and Gov. Brian Sandoval, alleging that the public defender system in sparsely populated rural counties is so threadbare that it’s unconstitutional.

The group filed a lawsuit Thursday in the 1st District Court in Carson City, arguing that the state’s failure to offer meaningful financial support to rural counties so they can pay for attorneys to represent the poorest clients means people are languishing in jail — losing jobs, relationships and property in the process — and getting shoddy representation by overworked and overwhelmed lawyers. Several reports over the years have highlighted the issue, but the state still hasn’t funded a permanent solution; the closest it came is a bill passed this legislative session that studies the issue.

“The State and the Governor have repeatedly failed to fix the system,” the suit says. “Meanwhile, people accused of crimes in Nevada’s rural counties who cannot afford a lawyer continue to be herded through the criminal justice system without the basic constitutional protection of meaningful representation.”

Sandoval’s office said they would review the filing.

“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,” said spokeswoman Mari St. Martin. “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. He also signed a law this year which created an Indigent Defense Commission. The Commission will look at the caseload and workload of defense counsel, minimum standards for legal representation of indigent defendants, and how to fund a statewide indigent defense system.”

The Nevada Supreme Court has applied $230,000 to the commission, which is led by Chief Justice Michael Cherry.

“Everyone in our state deserves an attorney regardless of their ability to pay for that representation,” Cherry said in a statement after the bill was signed into law. “It is time we did this and I am pleased we’re moving forward.”

An earlier form of the bill was stronger, giving the commission the power to implement and enforce standards of indigent defense, rather than just recommend changes. Opponents of that version included the Humboldt County Public Defender, who testified that local control was better and a statewide public defender system used in past years offered rural counties incompetent, urban lawyers with high turnover.

Sandoval’s office also noted he signed SB29 in 2017, a bill that allows rural defendants to transfer to urban jurisdictions so they can enroll in specialty court programs, such as drug court or mental health court.

The suit paints a dire picture of the public defender system in rural Nevada, where the state prosecuted nearly 4,000 indigent defendants in fiscal years 2015 and 2016.

Small rural counties contract with attorneys for a flat annual fee ranging from $88,000 a year in Lyon County to $196,000 in Douglas County, but the fee often must cover investigative and expert witness costs for an unlimited number of defendants. Contracts often don’t include reimbursement for traveling the vast stretches of the state’s rural counties and can allow the attorneys to also pick up private clients on the side, diluting time spent on indigent clients.

The plaintiffs in the case describe attorneys who are nearly impossible to reach and don’t meet with them except in open court for just minutes at a time. The public defenders are swamped — one attorney in Nye County, for example, was assigned 253 misdemeanor cases, 41 gross misdemeanor cases and 159 felony cases in fiscal year 2016, but only requested funds nine times to hire an expert and seven times to hire an investigator, according to the lawsuit.

One plaintiff, Jason Lee Enox, has been in jail for 19 months and has had persistent troubles contacting his court-appointed lawyer or getting updates about his case. The ACLU said he eventually took a plea deal because he faced a “catastrophic verdict” in a trial for which his attorney had not interviewed witnesses or otherwise conducted an investigation; he now faces 11 to 27 years in prison.

The ACLU is seeking a court order that, among other things, would require the state to propose a plan for offering meaningful indigent defense and bar the flat fee contracts that the organization says provide no incentives for lawyers to spend significant time working on individual cases.

The Sixth Amendment of the U.S. Constitution guarantees the accused the right to the a speedy trial and the assistance of counsel.

This story was updated at 3:45 p.m. to include comment from Gov. Brian Sandoval’s office.