Public defender seeks trials, not resolution of cases

By Matt Pordum

Tuesday, July 20, 2004 | 10:55 a.m.

The Clark County Public Defender's office has put an end to a program that had lawyers for indigent defendants entering plea bargains without even looking at the evidence or talking to the defendants.

In a letter last week, Clark County Public Defender Phil Kohn told District Attorney David Roger that his staff would no longer participate in the early case resolution program because in some cases the system led to violations of defendants' constitutional rights.

Roger implemented the program around the same time he took office in 2003 and said he felt it not only was a benefit to how justice was served but also gave public defenders and prosecutors more time to "focus on the cases that require full attention."

The goal of the program was to have public defenders identify and resolve appropriate cases at the time of arraignment rather than having all felony cases set for trial.

Assistant Public Defender Darren Richards said although the program might have been created with the best intentions, he blamed overzealous prosecutors for its failure.

"It (early case resolution) began as a way to weed out cases that might have been overcharged, but after awhile they (the District Attorney's office) began offering these blatantly one-sided offers," Richards said. "The District Attorney's office took advantage of it."

Richards said he has heard colleagues tell stories of prosecutors making plea agreement offers by saying "if you don't accept the deal now it will never be offered again."

Roger "respectfully disagreed" with Richards' take on how the early case resolution program was handled.

"We don't overcharge," Roger said. "We review cases and decide what we can prove beyond a reasonable doubt. Whenever someone says we overcharge, I say let's take it to a jury trial and let them decide."

Roger said prosecutors were flexible and would regularly wait for "a day or so" so public defenders could discuss plea bargain offers with their clients.

"Last year we had 53,000 cases in Justice Court and the early case resolution program allowed us to resolve many of them," Roger said. "There are judges who have told me they saw the amount of preliminary hearings cut down by 50 percent since the program was introduced."

But Kohn said that for the sake of providing "competent and ethical" representation that safeguards the rights of those who require public counsel, the program had to be ended, according to Richards.

"We're not going to participate in the program as constructed," Richards said. "We are open to any system that allows a public defender to learn the file and speak with the clients. You can't be considered competent or ethical if you are just making deals in open court without knowing all the facts."

Richards said the desire to do away with early case resolution program has been something Kohn, who will be away from the office for a month to recover from recent back surgery, has expressed since taking charge of the public defenders office in March.

Although the letter made the decision to stop the program official, Richards said public defenders had already stopped the practice months ago and there were really no surprises.

Nevada American Civil Liberties Union Executive Director Gary Peck praised Kohn's decision -- but said it was "long overdue."

Peck said the early case resolution program created a legal "system that compromised the ability of public defenders to properly represent the interests of their clients.

"This (the early case resolution plan) was nothing but a fast track deigned to speed up justice regardless of the rights of the defendants," Peck said. "There is no doubt this made the jobs of judges and district attorneys easier. Unfortunately it did so at the expense of indigent defendants."

The perception that the Clark County Public Defender's Office had been shirking its responsibility to competently defend the interests of its indignant clients resonated throughout the conclusions of a March 2003 evaluation of the office conducted by the National Legal Aid and Defender Association.

"The perception among the client population, gleaned from courtroom observation and client interviews, is that the public defender office seeks to get clients to plead as quickly as possible, regardless of whether they are guilty or of other needs and concerns the client may have," the report stated.

The report was commissioned after a joint report by the U.S. Department of Justice and American Bar Association found the public defender's office was not adequately serving indigent defendants.

Peck said that, in his mind, the report made it clear that "real accountability" must exist in the public defender's office. He said while Kohn is doing a good job so far, "there is a long way to go."

Peck said the lawyers in the office continue to need better training and supervision, and the office strongly needs more attorneys in the juvenile division where the current staff in some instances handles caseloads three times the national average.

Earlier this month, a senior staff attorney in the New York headquarters of the American Civil Liberties Union sent a letter to Clark County warning that the national organization will sue the county if it continues to fail to provide adequate legal representation to children accused of crimes.