Appeals court ruling on suit deals blow to county

Cy Ryan and Erica Johnson

Tuesday, Feb. 4, 2003 | 9:52 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 fatal stabbing 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. Miranda claimed that the policies of the public defender's office had robbed him of his right to an effective defense.

U.S. District Judge Lloyd George had dismissed the lawsuit, ruling that the defendants named by Miranda could not be sued for the reasons listed in the lawsuit.

The appeals court decision, written by Chief Judge Mary Schroeder, agreed that the lawsuit against Rigby should be dismissed. But it reinstated the suit against Clark County and Harris and sent the case back to U.S. District Court in Las Vegas.

Tom Beatty, the attorney representing Harris in the suit, said Miranda's case could make more 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 the relationship between a defendant and his attorney has little to do with the county.

"An attorney-client relationship is a personal relationship, it is not the relationship of an office or county," he said. "The individual makes the decisions about how the case will be handled, not the county or the public defender."

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

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 allocation of minimal resources for the preparation of the defense of those clients who failed the polygraph.

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 suit said that arrangement violated decisions by the U.S. Supreme Court that defendants should be guaranteed effective counsel regardless of guilt or innocence.

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.

Schroeder wrote that the public defender's office could not allocate its resources based solely on the outcome of a polygraph, but it can be used if a number of factors are considered.

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

"Public defenders have always been properly licensed and trained," he said.

JoNell Thomas, one of Miranda's current lawyers, said a polygraph test should never be the basis of determining how many resources a person receives for their defense.

"A person's fate should never depend on something as flimsy as a polygraph test," she said. "It's not science."

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 was filed by appeals court Judges Andrew Kleinfeld and Barry Silverman, who said the suit against Harris and Clark County should not be reinstated.

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 said, "It may or may not be a good idea to use the polygraph this way. But it is a lawyer's decision -- a decision that all criminal defense attorneys make in some form or another."

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.

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.

Though District Attorney David Roger would not comment on the policies of the public defender's office, he said Miranda's allegations don't sway him from his pro-death penalty stance.

"I believe Nevada prosecutors take their jobs seriously and review cases thoroughly," he said.