If you would have told me in law school that I would spend the first five years of my career as a public defender, I would have scoffed. But that’s exactly what happened, and I couldn’t be more grateful for the experience. In my years with the Washoe County Public Defender’s Office and my time as a prosecutor in two rural counties since then, I have worked with appointed attorneys of every description, and I am proud to call the vast majority friends and colleagues. As a whole they are dedicated, ethical, hardworking folks, and I know I can count on them to ensure my own exercise of power is kept properly limited and confined. A good prosecutor appreciates good defense attorneys more than most people could ever imagine.
And so I read with intense interest – and an incredible amount of frustration – the complaint filed against the State by the ACLU, essentially condemning those colleagues as lazy and unethical as a group. There is much to improve in the way we deliver indigent defense services, especially in the rurals, but this lawsuit may very well do more harm than good.
The complaint filed by the ACLU is brought in the name of only three specified defendants, and then includes “all others similarly situated.” In each case, their situations are described in the vaguest of terms, with key facts and circumstances (criminal history, facts and strength of the cases against them) left out entirely.
One of the things any competent trial attorney learns early is not to hide or hedge “bad facts.” If you don’t address them yourself at the outset, your opponent will throw them in your face, and the jury will be hard pressed to trust you after that.
Indeed, very little hard data supporting their claims is offered at all – the arguments are broad assertions of general incompetence backed up by a handful of anecdotes from convicted felons facing additional convictions. The harms described are tied to the remedies they seek with only the thinnest evidentiary strands. And their proposed solutions – “we demand the Court order the Governor to come up with a plan!” – are so nebulous as to be meaningless, even if the Governor, Legislature, and Supreme Court hadn’t already been actively focusing on this issue for years now. In some instances, like claiming no standards for indigent defense exist at all, they simply don’t have their facts right.
The lawsuit focuses largely on the way the appointed attorneys are paid, arguing that flat fee contracts (which have been banned for two years now) incentivize contract attorneys to do minimal work to maximize their personal profits. I suppose this is true for a few people, and attorneys for the indigent ought to be better compensated than they are. But when I was a public defender, we were all salaried – I got paid the same whether I filed a bunch of motions or not, but I still filed plenty of ‘em. Like any large organizations, we had a few indolent duds – but by and large, people interested in being public defenders both believe in the importance of the job and are innately competitive enough to actively work their cases. If someone is too lazy to do that, having them bill the county hourly isn’t going to suddenly turn them into hard-chargers for justice.
I have also seen abuses where attorneys must be hired outside the contract, and are paid hourly – an unethical few will drain already limited county resources with flurries of frivolous litigation, resources which could have been used for drug treatment or mental health services. There is no silver bullet here.
The complaint also bemoans the process by which the contracts are awarded, alleging that PDs aren’t independent because government entities hire them. Heads of government, being elected by the people they represent you see, sometimes think (quelle horreur!) politically. Somewhat paradoxically, they also argue that the contract attorneys need more supervision, I can only assume by some sort of… government entity. The ACLU isn’t wrong that there are problems here to be addressed, but sanitizing government action of any political consideration is neither possible nor desirable.
If only there was a licensing body lawyers were required to be part of, independent of the government, which also had disciplinary authority over its members. Better yet, we really should have an independent person in the courtroom charged with ensuring the attorneys are meeting minimum standards of professional competence…
In addition to the lack of carefully targeted solutions to articulable problems, this lawsuit serves to alienate the people who should be its partners in this mission – the very lawyers currently serving indigent defendants in rural counties. The complaint clumsily tries to avoid this by blaming “the system” and not naming names – but this rings hollow when lawyers, recognizable to their colleagues by the listed circumstances and locations, are accused of letting their clients languish in jail a few more months so they can make a few extra bucks on a private case.
What they should have done was invited a group of rural defenders, frustrated by the lack of resources in their home counties, to join the lawsuit, and include more criminal defendants as plaintiffs. If things are as dire as the ACLU paints, it would have been an easy sell. Instead, heels will be dug in, and otherwise achievable improvements will be resisted.
Worst of all, the lawsuit fails to mention probably the single largest obstacle to better representation of these defendants – a lack of attorneys practicing in the rural counties. (This oversight may or may not have to do with 2/3 of the attorneys bringing the suit living in huge, non-Nevada cities like New York and LA.) Sadly, I have seen more than one rural contract PD lose their contract because, usually due to some personal circumstance, they were failing to adequately represent their clients. (This gives lie to the assertion that chronically ineffective attorneys are tolerated or even tacitly encouraged by rural governments.) The more remote the jurisdiction, the fewer options there are to find a replacement. We should consider scholarships or loan forgiveness programs for law students willing to sign up for these jobs upon graduation, but sparsely populated areas will always struggle with this, and no lawsuit in the world can force lawyers to live or work where they don’t want to be.
Our criminal justice system is far from perfect, and there is plenty of room for improvement. Professionals at all levels of our government have been working diligently for years to identify and implement those improvements. But the problems are as diverse as our jail populations, and there is no magic wand anyone can waive to solve them all in one fell swoop, which is functionally what the ACLU is attempting to do. Their hearts may be in the right place, but we all know what the road to Hell is paved with.
By blundering into the fray with an ill-considered lawsuit, the ACLU risks turning allies into enemies, wasting time and resources, and undermining more responsible, local voices who are working hard everyday to continually improve our justice system.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at [email protected]