Public Interest

Nevada's Gideon Problem

O'Melveny launches suit to bring justice to Nevada.

By Margaret L. Carter & David A. Lash  
on

In Gideon v. Wainwright, the Supreme Court laid out a basic Constitutional cornerstone of our democracy. When a state accuses someone of a crime, the Sixth Amendment of the Constitution requires that the state must also provide him or her with a lawyer to defend against the charges if he or she cannot afford one. Liberty is such a core principle, and advocates are so important to our justice system, that in this great experiment we call democracy anyone who is in danger of losing his or her liberty must have access to an attorney. This guarantee is critical not only for the accused, but for the credibility of our court system and the rule of law.

In some jurisdictions, however, the guarantee in Gideon has been lost or never fully realized. The latest example is in Nevada.

Nevada was a pioneer on this issue. In the 19th Century, long before Gideon, the State of Nevada recognized that its justice system could not be fair if those most in need had no access to legal representation. In 1877, the Nevada Supreme Court ruled that “the failure to appoint counsel to the poor in a criminal case was a valid reason to overturn convictions on direct appeal.” In re Wixom, 12 Nev. 219, 224 (1877)

But today, 150 years later, Nevada has lost sight of both its own tradition of justice and constitutional requirements. Instead of providing sufficient resources, oversight, and training for qualified public defenders to provide meaningful representation to indigent defendants in Nevada’s rural counties, Nevada has abdicated its responsibility to these defendants. These underfunded rural counties lack a meaningful public defense system, and instead mainly rely on flat-fee or de facto flat-fee contract attorneys to act as public defenders.  These contract attorneys operate without the training, oversight, resources, or time necessary to ensure they are providing meaningful representation. In fact, very often they do not communicate with clients and their families in basic ways, they are not present for or do not meaningfully argue at bail hearings and initial appearances, and they do not learn their clients’ cases or investigate facts or obvious defenses. Even worse, they at times pressure clients into taking plea bargains because they are not ready for trial, lack the time and resources to take cases to trial, or are incentivized by flat-fee contracts to dispose of each case as quickly as possible.

Earlier this month, a team of lawyers from the ACLU of Nevada, the national ACLU’s Criminal Law Reform Project, pro bono attorneys from O’Melveny & Myers LLP, and former Nevada Federal Public Defender Franny Forsman filed suit to address these grave deficiencies. The class action asserts that Nevada has violated the Sixth Amendment and the Nevada Constitution by failing to provide meaningful representation to indigent defendants in eleven rural counties. It asserts that state officials, including the Governor of Nevada, have known about the crisis in these counties for far too long and have failed to correct it. Instead, eleven rural counties have been left without funding, oversight, guidelines, policies, programs or other critical resources needed to ensure long-guaranteed rights. The result is a betrayal of the constitutional guarantees of the right to counsel and due process that cannot be remedied, and that will continue to cause irreparable harm until the State acts to correct it.

The Nevada state system, in its failure to meet basic obligations and address key deficiencies, results in serious, life-altering constitutional violations.

Anecdotal stories from Nevada prompting the recent filing of this action are outrageous:

Sponsored

  • Appointed counsel are often unavailable to their indigent clients at the early, critical stages of the pending criminal proceedings. Defendants with good arguments for bail and compelling personal circumstances have to stay in jail merely because there was no lawyer to make appropriate bail or release arguments for them.
  • The resulting unfair and prolonged incarcerations have devastating impacts on the lives of the accused and their families. Defendants who are presumed innocent lose jobs and cannot care for family members while they are incarcerated pretrial. It is also much harder for them to assist with their own defense, or even meet with their attorneys, especially in rural counties where jails are often hundreds of miles from courthouses and attorney offices. This matters. Defendants who remain detained are more likely to be convicted than those whose attorneys have appeared and successfully argued for bond or release.
  • One defendant recently sat in jail for 19 months before trial. His court-appointed counsel waited at least a month to have a sit-down meeting with him, and never meaningfully argued for bail. During the time he sat in jail, he lost his job and was unable to attend his father’s funeral… all because no one was paying attention.
  • Another defendant did not hear from his lawyer for months, despite repeated calls to the attorney’s office by his family members. He tried calling from jail, but the appointed lawyer did not accept collect calls.

The result of Nevada’s broken defender system is tragic for these individuals, but it also undermines the entire criminal justice system. When a state fails to provide a meaningful defense for a poor person who it accuses of a crime — even though our criminal justice system depends on a qualified lawyer putting the government to its burden of proof of guilt beyond a reasonable doubt — then we as a society cannot have faith in the fairness of the system. When the State backs away from its responsibilities, defendants sit in jail endlessly, cannot meet with their lawyers, cannot hold the government to its burden, and take plea deals — not because they should but because they have realized that their attorney will not investigate, will not hire experts, and will not be prepared for trial. The action filed last month pleads serious constitutional violations, including the deprivation of the right to counsel and a lack of due process. But the crux of the problem is a failure of democracy for us all. The Sixth Amendment requires meaningful representation for those who are facing loss of liberty and cannot afford an attorney. It is a fundamental, accepted part of our justice system. However, without meaningful representation to vigorously advocate for the accused and hold the government to its burden, the system is not fair, and our democratic values are undermined. This is what is at stake in Nevada. Our system must be fair. We must live up to what we believe in, to what we stand for, to what our Nation and the State of Nevada have guaranteed to all.

Margaret L. Carter is a litigation partner at O’Melveny & Myers LLP and is co-counsel of record in the now-pending Nevada indigent defense challenge, https://www.aclu.org/cases/davis-v-nevada.  She was previously a federal prosecutor.  David A. Lash is the managing counsel for pro bono and public interest services at O’Melveny & Myers LLP.  The opinions expressed are theirs alone.

Sponsored

Topics

, ,