November 2, 2017

CARSON CITY, Nev. — The American Civil Liberties Union, the ACLU of Nevada, Franny Forsman, and O’Melveny & Myers LLP filed a class-action lawsuit against Nevada for routinely violating the constitutional rights of people in 11 of its rural counties. By law, every state in the nation must ensure that anyone accused of a crime who can’t afford a lawyer has access to rigorous legal representation. Nevada isn’t meeting that obligation, abdicating the job of public defense to individual counties. Eleven of the counties use contract attorneys, a system in which lawyers receive de facto flat fees and have a financial incentive to provide as little legal assistance to their clients as possible. Such failures violate the Sixth Amendment and jeopardize Nevadans’ right to due process and fair trials.

“I’m facing 67 years in prison. It has been four years since I was arrested, but nothing in my case has been investigated. My contract attorney is pressuring me to plead guilty,” said Diane Davis, a plaintiff in today’s lawsuit who has been accused of arson and animal cruelty. “My entire life is on the line. I need a lawyer, but what I have is a name on a piece of paper.” Since her arrest, Davis has had a series of four contract attorneys.

Too often, contract attorneys don’t investigate their clients’ cases, don’t contact their clients for months a time, pressure their clients into pleading guilty to charges they haven’t investigated, and fail to advocate effectively for their clients at sentencing.

“The state of Nevada has known for a decade that its rural public defense system doesn’t do its job, resulting in injustice after injustice. Yet the state has failed to fix it,” said Amy Rose, legal director at the ACLU of Nevada. “Nevada’s inaction has hurt thousands of people. Think of the needless weeks and months Nevadans have spent in jail—parents separated from children, wages and jobs lost, educations stalled.”

Contract attorneys also have private clients whose cases are more profitable than the cases the attorneys handle for the counties. This creates another financial incentive for contract attorneys to give minimal attention to clients who can’t afford to pay them.

“For too many defendants in rural Nevada, the phrase ‘innocent until proven guilty’ doesn’t apply,” said Emma Andersson, staff attorney with the ACLU’s Criminal Law Reform Project. “Thousands of Nevadans facing criminal charges can’t depend on their contract attorneys for legal help. How can they defend themselves in court against the government trying to lock them up?”

Many contract attorneys used in Nevada aren’t required to have training, experience, or education relevant to criminal defense.

“Nevada is shirking its constitutional duty, leaving thousands of defendants at the mercy of failing county-run and county-funded systems,” said Franny Forsman, an attorney in private practice who served as the federal public defender in Nevada for more than 20 years. “This problem has been studied for too long. It’s time for a solution that gives all Nevadans their constitutional due: the right to a defense.”

“Whether you’re in a rural area or the city, the right to counsel should always apply,” said Margaret Carter, a partner at O’Melveny & Myers LLP. “Instead of allowing so many of its counties to keep using failing contract attorney systems, Nevada must step in and do what the U.S. Supreme Court mandated more than 50 years ago. The Constitution requires it.”

Today’s lawsuit against Nevada marks the eighth case the ACLU has pending over states’ and counties’ inadequate public defense. Nevada joins Idaho; Missouri; Utah; Fresno County, California; Grays Harbor County, Washington; Luzerne County, Pennsylvania; and Orleans Parish, Louisiana. In addition, the ACLU is suing over systematic Sixth Amendment violations by courts in Beaufort and Bluffton, South Carolina; and Miami-Dade County, Florida.

For the complaint and more information about Davis v. Nevada:

ACLU:
https://www.aclu.org/cases/davis-v-nevada

ACLU of Nevada:
https://www.aclunv.org/en/cases/davis-v-nevada

About O’Melveny & Myers LLP:
www.omm.com

About the ACLU’s public defense work:
https://www.aclu.org/issues/criminal-law-reform/effective-counsel/indigent-defense

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