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ACLU Says Nevada Isn't Defending The State's Rural Poor

Anyone who has watched a crime drama on TV knows the Miranda rights.

You might even have them memorized: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present. If you cannot afford an attorney, one will be appointed for you.

It’s that last part that is the subject of a class action lawsuit filed the American Civil Liberties Union in Nevada. It says that people in rural communities in Nevada who cannot afford an attorney are not being adequately represented. And that their lives are being ruined because of it.

Most importantly, the lawsuit asserts, NOT providing adequate public defense for poor, rural clients is a violation of the U.S. and Nevada Constitutions.

“That is a constitutional obligation by the state," Amy Rose, legal director for the ACLU of Nevada told KNPR's State of Nevada, "This isn’t another line item that can be cut from the budget. Constitutional rights have to be honored and they have to find a way to fund this”

Rose said there are several problems with the current system. One of the biggest is how the contracted lawyers are paid. They are given a flat fee, not an hourly fee. 

They're also allowed to keep their private practice and they're not reimbursed for their travel.

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All of those points mean the attorneys prioritize their paying clients over their indigent ones and they don't travel as much to see their clients.

“It is really set up to disincentivize the attorneys who have these contracts from doing a lot of work and to do as little work as possible,” Rose said.

Franny Forsman is a former federal public defender for Nevada and she is a co-filer on the suit. She said the system has lead to almost no trials.

“The thing that concerns me the most is that there is an extremely low trial rate in the rural counties and that would be absolutely expected under these circumstances,” she said.

She said negotiations for deals for pleas or sentencing takes work and the system creates a "perfect storm" where people are forced to take a deal or take a deal that doesn't work in their favor.

“The way the rural system is set up it absolutely disincentivizes the lawyers from putting more work into the case than the absolute minimum,” she said. 

Forsman said one of the biggest issues is how the system is paid. It used to be that the state paid 80 percent of the cost of a statewide public defender and the rural counties and local governments paid 20 percent.

However, over the past several years, that payment system has swung the other direction. Now, the state pays 20 percent and the rural counties pay 80 percent. 

Since most counties couldn't afford the state public defender, they dropped out.

“They started getting creative," Forsman said, "They started creating these contracts to be able to save the county money. You can’t do criminal defense on the cheap. It’s a constitutional right”

Forsman said there is no question it will cost money to pay for an adequate indigent defense system in Nevada, but they both argue it is time for the state to pay for the constitutional rights of its citizens.

“I think what we’re looking for is for the state to invest in this system," Rose said.

Both lawyers say the problem isn't just about lawyer fees and travel times, it is having real-life consequences on people's lives.

Forsman pointed to a case currently being adjudicated now that involves arson. The evidence in the case was destroyed. So, the attorney for the defense was trying to get an arson expert to look at what is left, but a judge cut the amount that the expert would be paid. Now, Forsman is not sure if an investigation can be done.

"One of the most famous exonerations of a death penalty case was a case in which the arson investigator later went in and investigated and determined it wasn't arson at all," she said.

Gov. Brian Sandoval's office released this statement on the lawsuit to KNPR News:
 

"The filing of a lawsuit is disappointing, as the Office of the Governor had previously worked in collaboration with the Supreme Court, the Legislature and other advocacy groups on this issue.

Governor Sandoval had taken significant steps to improve rural indigent defense including signing into law a measure which created a rural judicial district. This provides greater access to justice for many living in rural communities.

He also signed a law this year which created an Indigent Defense Commission. The Commission will look at the caseload and workload of defense counsel, minimum standards for legal representation of indigent defendants, and how to fund a statewide indigent defense system.

Also, the Governor signed SB29 this session, which allows rural defendants to transfer to urban jurisdictions the purposes of utilizing specialty courts, such as drug court or mental health court."

Forsman agrees that there is a commission, but that commission has just studied the problem for the past 10 years and nothing has really been done to fix the issues.

She said states that have figured out the problem of providing criminal defense for people in rural counties have created a permanent indigent defense commission with independent people overseeing the system.

She said with the state in control of the system there will be better funding, oversight, and fewer conflicts of interest. 

“So that if you go 40 miles up the road from Las Vegas, you see a drastically different level of representation than if you were 40 miles down the road.”

Guests

Amy Rose, legal director, ACLU of Nevada; Franny Forsman, former public defender, and co-filer on lawsuit

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