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In Rural Nevada, the Right to Counsel Depends on the Size of Your Wallet

Nevada Welcome Sign
Nevada Welcome Sign
Franny Forsman,
Former Federal Public Defender
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November 2, 2017

The bleak truth of justice in America is that money matters.

Too often, people who are accused of a crime and cannot afford to hire their own lawyer get herded through the criminal justice system without the zealous defense that our Constitution guarantees. “Innocent until proven guilty” is a cruel and hollow motto when you don’t have an adequate defense, and the government is employing its vast resources to lock you up and take away your freedom.

This isn’t how it’s supposed to work. The presumption of innocence shouldn’t depend on the size of your wallet.

The Constitution demands that the poorest among us are provided an effective defense. That’s why I committed my entire legal career to defending people who can’t afford their own lawyer. It’s also why I am joining the ACLU’s lawsuit against the state and the governor of Nevada for the longstanding and widespread failures of Nevada’s rural public defense system.

I was Nevada’s federal public defender for over two decades. In that role, I supervised a functional public defense system where we did our best to get our clients released pretrial, thoroughly investigated our clients’ cases, regularly communicated with our clients and answered their questions, hired expert witnesses when necessary, poured over discovery, interviewed witnesses, filed motions to suppress evidence that was obtained unconstitutionally, explained the immigration consequences of plea deals to our clients, held the government to its burden of proof at trial, and explored every mitigation avenue possible for clients who were convicted and would be sentenced.

In other words, we were zealous advocates for each and every client, even though they couldn’t afford to pay us. This is what the Constitution requires.

This isn’t what public defense looks like in many of Nevada’s state courts. In these courts, you get a different level of justice depending on who you are and where you are accused of a crime. If you happen to be in rural Nevada — which is most of the state geographically — and you can’t hire your own lawyer, your prospects for getting a good defense are grim.

If you are arrested in Las Vegas or Reno, a lawyer will be assigned to your defense who is subject to the scrutiny of a selection process by criminal defense experts. That lawyer won’t have to choose between revealing your defense strategy to the judge trying the case and getting the resources needed to hire an expert or an investigator. That lawyer will not personally lose money by taking your case to trial or make more money by convincing you to take a plea deal you don’t want to take.

Forty or more miles away, in the cash-strapped rural counties, you’ll get a lawyer who may not have any previous criminal defense experience, who is often paid a flat fee for your case regardless of its complexity, and who also has private paying clients. That means the more time your lawyer spends working on your case, the less money he or she will take home.

Simply put, in rural Nevada, your case, and your liberty, will be no one’s priority.

Perhaps most disturbingly, this crisis is old and persistent news in Nevada. In 2008, the Nevada Supreme Court’s Indigent Defense Commission Rural Subcommittee found that the “rural counties are in crisis in terms of indigent defense.” In 2013, the Sixth Amendment Center published an extensive report on the state of the right to counsel in Nevada and concluded that “serious systemic deficiencies [are] plaguing rural counties.” During the 2015 legislative session, a Senate bill was introduced to solve some of the systemic public defense issues. The bill died in committee.

For the next two years, the status quo continued while the state routinely prosecuted public defendants in rural counties without constitutionally adequate legal representation. Earlier this year, the governor signed into law Senate Bill 377, which created a commission to “make recommendations to the Legislature to improve the provision of public defense services and to ensure that those services are provided in a manner that complies with the standards for the effective assistance of counsel.” In other words, everyone knows the problem exists, but rather than solving it, Nevada just wants to endlessly rediagnose it. Despite years on notice, little has changed for people who need a public defender in Nevada’s rural counties.

It hasn’t always been this way in Nevada. In Gideon v. Wainwright, the U.S. Supreme Court mandated that the states assure competent lawyers be provided to defendants who need a public defense in their courts. In 1971, Nevada responded, creating an independent State Public Defender Commission to fund and oversee the delivery of public defense services by the state public defender. But in the years since, Nevada has retreated and now largely shirks its constitutional duty, leaving defendants who need a public defender at the mercy of failing county-run and county-funded systems.

The state’s refusal to shoulder its duty to ensure that poor people in Nevada’s rural counties receive adequate representation results in unconscionable inequity. The consequences are real and devastating for people sitting in rural jails, most of whom only see their lawyers a few minutes before a hearing or whose lawyer may shove a life-changing plea agreement at them on a case that hasn’t even been investigated.

This problem has been studied for too long. It’s time for a solution. Adequate defense is a right for all Nevadans, not a privilege reserved for the privileged.

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