With the 2018 election for governor, attorney general, the Legislature and Clark County Commission now in the rear-view, I have a few thoughts on the uncertain future of criminal justice reform in our state. This vital area of concern was sidestepped by virtually every candidate during the campaigns – winner or loser. And I get it. It’s not an easy subject and probably hasn’t tested with focus groups as a driving force like health care, spinefullness or power bills.
Nonetheless, it’s a widely-held belief in and amongst the thinky-class that if we fix the way we handle criminal cases and punishment, we can save a ton of money and statistically guarantee less crime. We also can address inequities in the system regarding people of color and lower socioeconomic status.
I bring this up now because the Clark County Commission — with three outgoing lame ducks (albeit one who is about to be our new governor) — is about to appoint a new public defender. Presumably this task will fast track before the end of the year on the recommendation of the county manager’s office, but really, who knows, as the process is shrouded in secrecy enabled by an unfortunate lack of public interest.
Whoever is chosen, will that new public defender fight for resources for more and better-funded investigators, social workers, statistical analysts and lobbyists? Will he or she start drafting new legislation designed to limit the district attorney’s power instead of merely reacting to DA proposals? Are judges going to be tracked and exposed for misconduct, abuses of discretion and too much deference to the DA? Will the public defender take on the rampant racial profiling of potential jurors outlined in far too many Nevada Supreme Court cases? Will he or she have the fortitude to track juvenile cases for years, especially those where certification to adult court occurs, in order to report abuses and negative social impact? Will he or she submit amicus briefs to support efforts by their private defense bar counterparts to correct injustices in the areas of bail, overcharging, over-extension of existing laws, and so on? And most of all, will the new public defender bring the weight and power of that office into every courtroom, no matter the pressure, in order to support every single one of the deputy public defenders taking on our flawed system day-in and day-out?
This political appointment is arguably the most important aspect of a pragmatic solution to a problem our elected officials always seem to (and will probably continue to) merely poke at but never seriously solve. Nowhere is there more potential to unflinchingly move the dial and put heat to those who would obstruct a focused reform effort than installing the right person in the Clark County Public Defender’s Office.
While some elected officials, such as incoming Attorney General Aaron Ford, claim systemic reform is a priority, as was reported in a recent article in the Nevada Current and as was stated in his conversation on the IndyMatters podcast this week, it’s not enough. Such claims are welcome. But real criminal justice reform is a hard sell in the era of so-called victim’s rights movements — and the political vulnerability that comes with the (unfair) tag of “pro-felon” decision making. While a smart, motivated leader might be able to re-frame the conversation, only through a concerted effort by zealous, fortified advocates within the legal system will we see positive change.
The problem is that since their inception, the public defender offices in Nevada, and most notably the biggest one of all (Clark County), have either not shown an interest in making systemic advances or have been unwilling to go on a wide-scale offensive against the district attorneys, courts and/or government. There have been some great small battles here and there, for sure, but nothing on the large and consistent scale that a renegade and committed public defender’s office could accomplish. No matter what small gains may come from so-called “criminal justice reform,” unless the state’s defenders can persuade the prosecutors to go along with initiatives for change, there will be no real change.
Case in point: The most powerful DA in Nevada, Steve Wolfson, is not a friend to change, at least not in the vein of true DA progressives who are taking modern criminal justice reform seriously. The Clark County district attorney’s office (along with their colleagues throughout the state) continues to obstruct the sweeping reforms necessary for a more equitable and efficient system. In the Legislature, Wolfson’s office routinely opposes even the most modest reforms and presumably will again attempt to water down any real reforms in the next session.
Lawmakers must stand firm. To aid them is a list of criticisms from both before and during the Wolfson-era that are literally too lengthy to list, but which include: death penalty abuses, racial inequity in jury selection, active resistance to bail reform, overcharging, defending the use of faulty drug tests, fighting the exoneration of innocent men and women, stacking of charges within a single incident, forcing litigation to reveal public records on witness payments, opposition to sealing marijuana convictions in a time when marijuana is legal, overzealous protection of police accused with unjustified killings — and on and on into sadly surrealistic reality.
There’s also a long and troubled history in the Clark County public defender’s office that seems to have been entirely forgotten, as the Clark County Commission is likely about to announce the elevation of one of four current public defenders to the top spot for an open-ended term — unless scandal or ineffectiveness forces them out, as has befallen many past Clark County public defenders.
A quick history lesson
In 1972 a man named Morgan Harris was appointed to and then held the relatively new position of Clark County public defender for almost 30 years. His term was not without controversy. In 2001, Harris stepped down amidst an internal audit, allegations of misuse of county staff, and a highly critical report from a national group evaluating public defense offices throughout the United States.
(Since 2001, there have been numerous, lengthy national critiques of the public defense system in Nevada and the adoption of various performance standards for indigent defense. The bottom line is that all serious evaluations of the various public defender offices in Nevada have shown talented individuals lacking the systemic support and resources to make transformative changes in line with some of the most basic requirements of criminal justice reform. We therefore have had a culture that is hampered both internally and externally from being the agent of change it is singularly situated to be.)
After Morgan Harris left the office, he was replaced (internally) by Marcus Cooper. Mr. Cooper left the office after two years, stating that the office was on the precipice of needed change, but admitting that he was not the person for the job.
Enter Phil Kohn in 2003, who had worked for years under Morgan Harris and had spent a short stint running a conflict office called the special public defender. Kohn immediately named Daren Richards as his second in command — and has recently announced his “retirement” after a scathing report of sexual and behavioral misconduct. That conduct aside, so vast were the criticisms of Kohn’s office that many of its exceptional attorneys had already wanted change — but again, were without systemic support to launch effective challenges. Instead, they are left to rely on their own ingenuity on micro-levels.
With Phil Kohn’s exit, it is time to break the cycle of a subdued culture of status quo. It is high time that the Clark County Commission take these matters in hand — but instead it appears that they are conducting a very quick, very quiet and highly secretive hiring process without clearly stated goals or standards and without any attempt to conduct a nationwide search for qualified candidates who could shake things up.
To wit: A subcommittee was created to screen the applicants who did apply, which resulted in a field of four department-internal attorneys: Daren Richards, Christy Craig, Darin Imlay and Scott Coffee. Each worked in Kohn’s office for the entirety of his term, as well as the terms of prior Clark County PD administrations. Each certainly has established him or herself as a hard-working lawyer, but the culture being inherited is, in a word, a mess, so:
Do any of them really have what it takes to turn around the office? Will any of these individuals become a champion not just in words but in hard, unpopular deeds and do what it takes to mute the district attorney’s loud voice in keeping with a dysfunctional status quo on a system wide basis? Are they willing to not be a friend of the DA and/or the county and start taking people to task? If so, is the county willing to commit the resources it will take to do so?
I’m not convinced the county even wants to tackle these things. There is little evidence so far that the commission has a desire for an innovator or reformer in this important position. I’m also not sure these candidates have been vetted in a way that will be best for the community. I don’t know whether any has the experience of bringing together a disjointed office mired in bad juju from its prior administrations. I also don’t know — OK, maybe I do know — if I want outgoing commissioners like Susan Brager, who have shown little to no interest in criminal justice reform, having a voice in this particular appointment.
Most of all, I can’t believe we aren’t spending more time having a public debate as to what sort of public defender we need. At a minimum, the critiques of the past captured in those studies need to be addressed in a candid and transparent way and need to be laid out for all interested parties for discussion and engagement.
How many more national reports will it take and how many more tarnished resignations will come if we don’t do this right, now?
Dayvid Figler is a private criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.