Appeals court ruling on suit could cost county

Cy Ryan and Erica D. Johnson

Tuesday, Feb. 4, 2003 | 11:13 a.m.

CARSON CITY -- Clark County officials were trying to determine Monday whether a federal appeals court ruling could open a floodgate of costly lawsuits against the county and the public defender's office.

The 9th U.S. Circuit Court of Appeals ruled that Robert H. Miranda, a former death row inmate, can sue the county and a former public defender over policies that he alleges led to poor legal representation.

Miranda was convicted and sentenced to death for the stabbing death of Manuel Torres in Las Vegas in August 1981 and spent 14 years on death row before the Nevada Supreme Court overturned his conviction and freed him.

Miranda sued the county as well as Morgan Harris, the former public defender, and Thomas Rigby, an assistant public defender, claiming that the policies of the public defender's office robbed him of his right to an effective defense. U.S. District Judge Lloyd George had dismissed the lawsuit, but the appeals court decision, written by Chief Judge Mary Schroeder, reinstated the suit against Clark County and Harris and sent the case back to federal District Court in Las Vegas.

While Miranda represents only "a handful" of people released from death row based on these grounds, the court's decision is not limited to death row inmates, JoNell Thomas, one of Miranda's current attorneys, said.

"This could apply to other cases," she said. "Death penalty cases warrant closer scrutiny, but all defendants are entitled to a full defense and a full investigation."

Thomas said she hoped Miranda's case will be a signal to the public defender's office to conduct vigorous defenses.

Tom Beatty, the attorney representing Harris in the suit, said Miranda's case could make future litigation a possibility.

"Under some interpretations, this could open the door to more claims being filed," he said. "But that doesn't answer the question of whether or not those claims have merit."

Beatty said he is reviewing the court's opinion to determine his next step.

Public Defender Marcus Cooper did not return phone calls for comment.

Miranda alleged in his lawsuit that Harris had two policies that led to his conviction. The first called for a lie detector test for all defendants and minimal resources for the defense of clients who failed.

The appeals court said the lie detector policy, "while falling short of the complete denial of counsel, is a policy of deliberate indifference to the requirement that every criminal defendant receive adequate representation, regardless of innocence or guilt."

The second policy, Miranda alleged, was to assign the least experienced lawyers on the staff to capital cases without training or experience in those cases. Miranda said that constituted a "deliberate indifference" to the constitutional rights of defendants.

Beatty denied that either policy ever existed in the public defender's office.

"Polygraph tests have never been used to allocate resources and public defenders have always been properly licensed and trained," he said.

But Allen Lichtenstein, general counsel for the American Civil Liberties Union, said Miranda's case is not the first he's heard of inadequate representation by the public defender's office.

"We have for years been getting complaints about the public defender's office," he said.

While Lichtenstein said he doesn't hope to see an influx of lawsuits, he does hope people who were wrongly convicted due to inadequate representation are encouraged to vindicate their rights.

"It is not unreasonable to think that others who suffer from the same policies might decide to pursue the matter."

Miranda's lawsuit also claimed Clark County not only assigned inexperienced pubic defenders to death penalty cases but also had a policy of refusing to train public defenders for capital cases. The appeals court said those policies set up a situation that was "sufficient to create a claim of deliberate indifference to the constitutional rights' in the failure to train lawyer to represent clients accused of capital offenses."

A dissent filed by appeals court Judges Andrew Kleinfeld and Barry Silverman disagreed with the allegation that polygraphs were used to allocate resources. Kleinfeld said the polygraph was used to sort out what lies clients may be telling their lawyers, not to determine guilt or innocence.

Criminal defendants lie to their lawyers frequently, Kleinfeld said. The dissent also said Clark County does not have anything to do with assigning work to public defenders and doesn't have anything to do with training or licensing lawyers.

Beatty agreed with the dissent, saying the relationship between a public defender and a client is a personal one.

"The individual makes the decisions about how the case will be defended, not the county or the public defender's office," he said.

After Miranda's conviction was erased, he was never retried. The Clark County district attorney's office said that the death of witnesses, not the weakness of the state's case, was behind the decision not to prosecute again.