Public Defender System In Nevada Poised For Reforms

By Emma Cueto | August 16, 2020, 8:02 PM EDT

In January 2017, Jason Enox was charged with drug-related offenses that could have resulted in Enox spending the rest of his life in prison. However, the defense attorney appointed by the state of Nevada allegedly failed to take the case seriously and did so little work he was chastised by the judge.

Those allegations were part of a class action that attorneys at the American Civil Liberties Union and O'Melveny & Myers LLP brought in 2017 on behalf of Enox and other indigent defendants. This month, those defendants won preliminary approval for a consent judgment that would force the state to reform its public defender system, which advocates say has been broken for years.

Combined with recent state legislation, attorneys said that they were hopeful that the agreement, which includes elimination of flat fees and minimum standards for performance, would result in real change for low-income defendants in Nevada.

"For our criminal justice system to be fair and to be something in which all people have confidence, it has to work for everyone," said Maggie Carter, an O'Melveny partner with experience as both a defense attorney and a prosecutor. "We think [this case] is an important step forward."

Advocates say that Nevada was once a trailblazer when it came to right to counsel, with the state Supreme Court ruling in 1877 that defendants unable to afford an attorney should have an attorney appointed for them, almost a century before the U.S. Supreme Court came to the same conclusion in Gideon v. Wainwright in 1963.

However, the modern public defender system operates on a county-by-county level, an approach that leaves defendants in many parts of the state out in the cold, the lawsuit alleged.

In a 2018 report on Nevada, the Sixth Amendment Center found that in most rural counties, there was no public defender office, but that instead counties contracted with private attorneys for a fixed annual fee. Often, these attorneys are also responsible for covering case-related expenses, which disincentivizes attorneys from going the extra mile for clients.

Overall, the county-by-county approach had resulted in a variety of problems in many counties, the report found, such as a lack of independence for appointed attorneys; attorneys who had little training or supervision; a lack of support services for clients, including translation services; attorneys who were largely absent after the initial appearance; a lack of independent investigations by defense attorneys; and excessive caseloads.

There is also little to no oversight by the state, and almost no guidance given to cities for how to provide representation to defendants in municipal courts, the report said.

For low-income Nevadans, this could all have very real consequences. For instance, even after the judge in Enox's case replaced his original attorney with a new one, the new attorney still allegedly did not hire an investigator to conduct an independent investigation, even after the court authorized the funds for it.

His new attorney also did not make a "meaningful" effort for Enox to be released from pretrial detention in order to attend his father's funeral, according to the complaint.

Enox spent a total of 20 months in jail awaiting trial, the complaint said, during which time he lost his job and was forced to sell his belongings, and his house was destroyed because he could not properly fight a property dispute. He eventually entered a plea agreement in the case.

"The promise of Gideon has never been realized in many jurisdictions and rural Nevada is one of them," Emma Andersson, an attorney with the ACLU, told Law360 in an email.

Andersson said that the national ACLU and the ACLU of Nevada decided to pursue litigation once it became clear that there wasn't political will in the state to fix some of these issues, despite ample evidence of a problem.

They teamed up with Franny Forsman, the former federal public defender for Nevada and also sought out an outside law firm with whom to partner. Andersson said she was introduced to O'Melveny through a mutual contact. The team jumped in "enthusiastically," she said and was involved in the case from the prefiling phase.

The state maintained that its practices did not violate the Sixth Amendment, which guarantees the rights of criminal defendants.

The attorneys for the proposed class moved for class certification early, but the state took the unusual step of requesting a year of class discovery. Andersson said she considered it to be "a delay tactic."

"The state didn't need a year's worth of class discovery to be able to oppose the motion," she said in an email.

Overall, the attorneys said, the team collaborated well throughout the case. Forsman and the ACLU of Nevada provided insight into the local situation in Nevada, including local politics, while Andersson and her colleagues at the national ACLU brought perspective from similar work in other states. Meanwhile, O'Melveny provided the deep bench necessary to keep the suit moving.

In 2018, the case took a positive turn, attorneys said, when a new administration was voted into office. Republican Gov. Brian Sandoval was term-limited, and the Republican attorney general chose to run for governor, rather than running for re-election as AG. Instead, Democrats took both offices,

The new administration had a very different approach to the case and agreed that reforms were necessary, attorneys said.

The parties eventually reached an agreement for a consent judgment, in which the state agrees to hit certain benchmarks for improvement, with a court-appointed monitor there to ensure that the goals are met.

Attorneys said that, combined with recent action by the state Legislature to create a statewide Department of Indigent Defense Services to set standards and provide oversight, the consent judgment will lead to low-income defendants getting the quality legal representation to which they are entitled.

However, attorneys added, it remains to be seen if the Legislature will also hand over the funding necessary to ensure that things go smoothly. The hope is that the consent judgment will make it more likely that they will.

"We expect that the ongoing oversight required in the consent judgment will continue to put needed pressure on the Legislature to properly fund the system and ensure recent changes have real teeth and real staying power," Andersson wrote.

For Carter and counsel Matt Cowan of O'Melveny, the opportunity to effect this kind of change was "very rewarding."

"Making a real difference at the state or even national level is something that is engrained in our firm values," Cowan said. He also appreciated the chance for the firm to work on the case from the beginning, rather than coming in at a later stage, and getting to see it through from start to finish. "It was such a positive experience."

Carter added that for her, having worked on both the prosecution and defense side of the criminal justice system, she saw the issue at stake in the litigation as vitally important. She also enjoyed the chance to take on such a large project.

"Across the firm we do pro bono engagements of all shapes and sizes, and this case is certainly on the large end," she said. "It's a piece of impact litigation that we got involved in prefiling and took all the way to settlement. It's definitely special in that way."

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--Editing by Katherine Rautenberg.

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