Those who can afford lawyers can still get a public defender

Molly Ball

Friday, July 15, 2005 | 9:16 a.m.

WEEKEND EDITION

July 16-17, 2005

There is a widely circulated bit of lore in the Clark County courthouse about a criminal defendant who was a doctor.

The man pulled up to court in a Mercedes, the story goes, then headed inside to meet his free, court-appointed lawyer.

Although the details of this story, which has acquired the status of urban legend among court workers, could not be confirmed, it reflects a shocking truth: There has never been any standard in Clark County for who is too poor to hire a lawyer, and the claims of indigence have never been checked to see if they're true.

That is about to change.

Court officials and the public defender's office have been meeting for months to design a benchmark for what constitutes a truly indigent defendant and to put in place verification mechanisms to make sure defendants are telling the truth about their income and assets.

"It is very important to me as public defender that no one be denied representation because they can't afford it," Public Defender Phil Kohn said. "But it's also important that our caseloads don't become unmanageable because of overrepresentation."

County Manager Thom Reilly called for the project, and officials hope it can be implemented in phases once the long-delayed new courthouse opens. The completion of the Regional Justice Center, more than three years late, is now scheduled for October.

Greg Denue, a Las Vegas criminal defense attorney who also takes contract cases as a court-appointed lawyer, said he often represents people on the taxpayer's dime who drive nicer cars than he does.

"I don't think it's fair that taxpayers have to pay for all this," he said. "And it's not fair to the public defender's office -- they are phenomenally overworked."

Officials caution, however, that instituting standards is unlikely to save the county money.

The county hasn't calculated how much could be saved by creating such standards.

"But based on other jurisdictions, it's a very, very small amount of money -- not enough to recoup what we're putting into it in terms of staff," Assistant County Manager Catherine Cortez Masto said.

The county estimates it would take 12 full-time staffers to administer a full-fledged eligibility program. Cortez Masto said the county is prepared to fund some positions, but not that many.

Some costs could be recouped by collecting the courts' bad debt. The Las Vegas Justice Court alone is owed $61 million in unpaid assessments.

Clark County's 11 Justice Courts have never hired a collection agency to go after debtors, but are now contemplating such a move, said Christina Chandler, Justice Court management consultant.

Some defendants currently receiving free lawyers would indeed be denied them under the new standards, whether because they are lying about being poor or because they are not poor enough. But not many, Cortez Masto said.

A study in April of 100 jail inmates assigned public defenders found none owned property, only 22 owned cars and 48 reported no income.

"What it (the analysis) showed is that they're poor," said Pre-Trial Service Manager Anna Vasquez, who conducted the study.

Many states use one-and-a-half times the federal poverty definition as their standard for who is considered indigent. Of the 100 inmates Vasquez surveyed, 70 had incomes below that level.

But Clark County officials want a higher standard, perhaps three times the poverty level, to reflect who can truly afford a private lawyer.

At the 150 percent level, "someone making as little as $14,000 wouldn't qualify," Kohn said. In addition, defendants who don't make bail can't earn income while in jail, he noted.

The officials are considering plans that would establish a sliding scale rather than a firm ceiling, with some public defender clients paying a fee if they have some means, but not enough for an attorney's full services.

The average Las Vegas criminal attorney charges $200 an hour, court officials say. A felony case that goes to trial will require 25 to 50 hours of preparation, and lawyers then charge $1,000 to $2,000 for each day they spend in court.

A more common problem than rich people lying to get a free lawyer is poor people bankrupting themselves to avoid the public defender's office, officials say.

"Most defendants I see in Justice Court incorrectly say, 'I don't want a public defender, I want a real lawyer,' " District Attorney David Roger said. "That's probably a big mistake. The PDs are excellent lawyers."

Kohn attested to the same phenomenon. "The fact that people are getting something for nothing makes them question the value of it," he said.

Kohn has heard of a case in which family jewels were pawned to hire a private lawyer who turned out to be incompetent, and another in which a mother got her son an attorney in exchange for agreeing to clean the lawyer's office for five years.

Most criminal defense attorneys require a $5,000 to $10,000 retainer up front. Many working-class defendants can scrape that together, but no more. When the retainer runs out, the lawyer may drop the case, leaving the defendant broke and sending the case back to the public defender, Kohn said.

Changing lawyers midway through a case hurts a defendant's case and delays court proceedings, thereby also putting off justice for victims of crime, Kohn said.

Denue acknowledged that lawyers do sometimes leave cases when the money runs out, but he said attorneys are more affordable than officials claim. Most criminal defense lawyers take payment plans, credit cards and reduced fees to accommodate lower-income clients.

"I've done cases for $500 down," he said.

The Sixth Amendment states that those accused of crimes have the right to be represented by a lawyer. But it was not until the landmark 1963 Supreme Court case Gideon v. Wainwright that state courts were required to provide free lawyers to those who couldn't afford them.

The current standard, honed by the courts over the years, is that anyone who is indigent and facing incarceration for a criminal charge has a right to taxpayer-funded representation.

Currently, Clark County defendants claiming indigence fill out a form with personal and financial information. A public defender then assesses whether the person seems poor enough for his services.

That process is unethical and probably illegal because it creates a conflict of interest, Kohn said: Public defenders are responsible for two tasks that may be at odds, assessing whether defendants are indigent and advocating for those defendants' interests.

"I've seen transcripts where you have the public defender saying, 'I think this guy can afford counsel,' " Federal Public Defender Franny Forsman said.

Under the new system, administrators would make the poverty determination and the defendant would sign a sworn affidavit stating that he or she can't afford to hire a lawyer. If it turned out later that a defendant lied, he could be fined by the court and even prosecuted for perjury.

Officials say the creation of standards is about being consistent.

"It's good public governance," Chandler said. "It creates accountability."

And with accountability comes respect, she said: defendants who see their public defenders as "real lawyers."

The Clark County public defender's office has suffered from a dismal reputation for years, with studies finding the lawyers' caseloads so large as to constitute violation of defendants' civil rights.

But many say that has changed since Kohn took over in April 2004. Critics say Kohn has brought new zeal to the position and improved caseloads by convincing the county to hire more lawyers for the office.

Before Kohn's tenure, only about 10 percent of public defender clients won acquittals at trial, District Court Administrator Chuck Short said. In the last year, however, acquittal rates have risen to 20 percent to 30 percent, he said.

In May of this year, juries handed down 15 verdicts to public defender clients. Seven were acquitted, one had a deadlocked jury and two got mixed verdicts, meaning they were convicted of some but not all of the crimes charged -- an unprecedented success rate for public defenders, Short said.

In the recent past, the Nevada American Civil Liberties Union threatened to sue the county for understaffing the public defender's office.

But now, "that office has undergone a sea change," said Gary Peck, the group's executive director.

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