Defense of poor will improve, or so it is hoped

By Brian Eckhouse (contact)

Thursday, Nov. 13, 2008 | 2 a.m.

Lawyers who defend Nevada’s poor will have to meet certain performance standards beginning April 1, the state Supreme Court decreed last month.

The order pleased representatives of local and national advocacy groups who complained for years that a large percentage of indigent defendants get very little attention before going to court. Sometimes, they meet their public defenders just minutes before trial.

Under the new rules, public defenders must offer legal counsel at every stage of the case and trial preparation.

But those who pushed for the standards remain skeptical that the indigent actually will get the level of service mandated by these performance standards — or at least, not by the April deadline.

Advocates for the performance standards contend that reaching these expectations probably requires hiring more public defenders.

“The performance standards are great, but with the current caseloads, attorneys can’t always consider all of the American Bar Association principles,” said David Carroll, the research director for the National Legal Aid & Defender Association. “Something has to give.”

Carroll, who for years has kept tabs on Nevada’s caseloads from his East Coast office, estimates that public defenders in Clark County handle, on average, more than one case per day. “That’s astronomically high,” he said. A New York Times report Sunday found that a number of public defenders nationally are declining cases, citing overwhelming dockets.

If the caseloads don’t lessen here, said federal public defender Franny Forsman, “I don’t think anyone really believes the performance standards can be met. The Supreme Court would not have reached out had they not recognized that there is a broken system. There’s evidence of this over 20 years.”

Clark County officials, however, say they are not convinced more public defenders are needed. Proponents of more staffing say the real reason the county is against hiring more public defenders is the cost. The county spends about $32.8 million annually on lawyers for indigent defendants, a spokesman said.

The American Civil Liberties Union and other national organizations that have pushed for reform in Nevada say Clark County and the other counties that fought against the performance standards have a relatively easy answer to the funding burden: Throw it onto the state government.

They point to a U.S. Supreme Court ruling that places the ultimate responsibility on state governments. Thirty states bear that responsibility. For decades, however, Nevada has deferred to its counties.

That creates significant disparities between richer and poorer counties, says Emily Chiang of the ACLU. And even the richer counties are falling short. Washoe County definitely hasn’t met all the performance standards, and Clark County probably hasn’t, either, Carroll says.

Representatives of the public defender’s office in Clark County have long complained that they’re understaffed and overextended. Increasing ranks of police officers in recent years has prompted a rise in arrests and prosecutions, they say.

District Attorney David Roger counters that the public defender’s office is actually overstaffed, judging by the number of its lawyers he regularly sees observing hearings from the back of courtrooms. And the county has added some positions to the public defenders office in recent years — including a special public defender’s office to handle death penalty cases — and is about to add several more.

Advocates for the poor say that’s unlikely to be enough.

Clark and Washoe counties have hired a Massachusetts company to study the public defenders’ caseloads, but that work may not be finished until mid-May.

If the caseload study shows the county’s public defenders are indeed overburdened and that more are needed to meet the performance standards, the county may have to take the advice of the advocacy groups and drop the burden on the state.