Las Vegas Sun

July 25, 2014

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State Supreme Court sides with transparency in refusing to seal court records

The Nevada Supreme Court has ruled that court records in criminal cases should be open to the public for "an effective, functioning judicial system."

The three-judge panel refused to seal the records of the federal public defender's office, although some of the items may be embarrassing that show inappropriate conduct by the lawyers.

The case involved death row inmate Samuel Howard convicted of killing Las Vegas dentist George Monahan while going for a test ride in the man's van on March 27, 1980.

An investigation by the public defender's office revealed that sexual relations and friendships led to ineffective representation of Howard and others on death row. And it asked that its investigation be sealed from public view, but the court refused.

Patricia Erickson of the public defender's office was appointed to represent Howard in his post-convictions appeals from 1994 to 2007.

The investigation revealed that Erickson "has effectively abandoned and provided ineffective representation to many death row inmates including Howard."

Erickson repeatedly failed to file pleadings or missed the deadlines and was repeatedly chastised and sanctioned by the Supreme Court for her failings and unprofessional conduct.

The investigation revealed that former public defender Franny Forsman and current Chief of the Capital Habeas Unit Michael Pescetta knew of the problems but repeatedly vouched for Erickson's effectiveness and fitness to practice law.

The investigation said it "has determined that Ms. Forsman may have failed to recognize Ms. Erickson failing due to their personal friendship and Mr. Pescetta may have failed to recognize the same due to his romantic and personal relationship with Ms. Erickson."

This behavior meant that the entire public defender's office must remove itself from Howard's representation and other counsel be assigned. And this was done.

In the refusal to seal the records, Justice James Hardesty wrote, "Although we can appreciate the desire to avoid unnecessary embarrassment, that alone is insufficient to warrant sealing court records from public inspection."

Hardesty said the results of the investigation do not reveal "any confidential information that warrants protection from public inspection."

The court said judges have the authority to seal records "only where the public's right to access is outweighed by competing interests."

Justices Nancy Saitta and Kristina Pickering agreed in the decision.

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