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OPINION: Do Nevada’s indigent defense standards hold up 15 years later?

Randolph Fiedler
Randolph Fiedler
Franny Forsman
Franny Forsman

“You’re entitled to an attorney. If you cannot afford an attorney, one will be provided to you.” So we’re told on every crime show since the 1960s. But what good is having an attorney if they’re no good? And then how do we ensure they’re good enough?

In the mid-2000s, the Nevada Supreme Court wrestled with this question and, 15 years ago today, adopted the Nevada Indigent Defense Standards of Performance. With the standards well into their teen years (but still not old enough to drive), it’s a good time to reflect on their legacy.

First, a history lesson. After several studies finding serious deficiencies in the provision of representation to indigent defendants in Nevada and an expensive lawsuit, the Las Vegas Review-Journal published a scathing report in 2007 on abuses by counsel contracted to represent indigent defendants in billing Clark County for their services. Although a previous commission (the Supreme Court Commission on Racial, Gender and Economic Bias) made numerous recommendations, it was not until the Supreme Court created the Indigent Defense Commission in 2007, that any serious consideration was given to the subject.

Then-Chief Justice Bill Maupin named a number of criminal defense practitioners and public defenders onto a commission, with Justice Mike Cherry as the chair. Its first report was issued Nov. 20, 2007. The report urged removal of the trial judge from the appointment process to create independence of the defense function from the judiciary. (The goal was to provide poor defendants with similar court experience as those with money). 

The report also recommended that death penalty cases in the rural counties be assigned to the state public defender, defined the term “indigent,” and most importantly adopted a comprehensive set of performance standards to measure progress. The performance standards were drawn from dozens of standards already adopted around the country and compiled by the National Legal Aid and Defender Association. The standards went into effect in January 2008.

Almost immediately, the Nevada Supreme Court received objections from district attorneys and from rural judges. The district attorneys claimed that adoption of performance standards would make convictions vulnerable to reversal if an attorney failed to follow the standards. The rural judges were concerned that separating the trial judge from the appointment process would be impossible in small jurisdictions. So, in March 2008, the standards were postponed.

New members, including prosecutors, were added to the commission. The performance standards were amended, after six months of meetings, which included the current district attorney of Clark County, retired Supreme Court Justice Nancy Becker and then-Federal Public Defender Franny Forsman. Finally, in October 2008, the new standards were unveiled, to go into effect on April 1, 2009.

The updated standards were softened, but they included extensive and specific tasks that all appointed counsel should follow in death penalty, felony and juvenile cases. The adoption of these standards, after years of study following decades of dysfunction, is a success story of community compromise, deliberation and action.

But challenges remain. Nevada does not have enough defense lawyers. A recent study commissioned by the Nevada Department of Indigent Defense Services noted, with concern, a shortage of attorneys in rural Nevada. Clark County will face a shortage of private appointed counsel if it continues to offer the lowest rate of compensation in the state (one-third to one-half the rate in Washoe, depending on the kind of case, and significantly less than the rural or federal rate).

And the Nevada attorneys that we do have are working too many cases. As a recent study of public defender caseloads concluded, national caseload standards — originating from the 1970s and empirically suspect — need to be recalibrated. The old standards suggested one attorney could handle 150 felonies a year; the study concludes that a constitutionally adequate defense lawyer should only handle 21 high level felonies at most (and even fewer if the felonies are murder, sexual assault or life-without-the-possibility-of-parole cases). For reference, the Clark County Public Defender’s Office had 115 lawyers in 2022, and took on 18,114 felony cases. 

Finally, oversight remains a problem. Developments in federal law mean that federal courts — which have historically played an important role in enforcing minimum constitutional standards of care — will rarely interfere with a state conviction, even in the face of gross malpractice by defense counsel. Our state courts have nor enforced the Nevada Indigent Defense Standards of Performance (ADKT 411) guidelines with the vivacity required to ensure quality representation. Not once has the Nevada Supreme Court relied on the guidelines to find a defense attorney was ineffective. So, where a defense lawyer fails to live up to what the guidelines require, it’s unclear if the client will have an avenue for relief.

Nevada has a rich history of providing lawyers to those who can’t afford them. Gov. Joe Lombardo’s recent Indigent Defense Day proclamation recognized that “robust indigent defense services protect individuals and the community through providing fair trials, avoiding wrongful convictions, and preventing unnecessary separation of families.” The proclamation also celebrated Thomas Wren, the “father of the right to counsel in Nevada,” an assemblyman in the 1875 legislature, and the fact that Nevada recognized a right to counsel 90 years before the United States Supreme Court did.

The governor was right to celebrate this history; it’s important. So, too, are the performance standards. As Nevada faces the future of defense services, it should remember its past.

Randolph M. Fiedler is a Las Vegas public defender who represents individuals sentenced to death in their state and federal post-conviction proceedings. He is a past president and current chair of amicus for Nevada Attorneys for Criminal Justice.

Franny Forsman is a long-time criminal defense attorney. She has served as president of the State Bar of Nevada and was the federal public defender for the District of Nevada for 22 years.

The Nevada Independent welcomes informed, cogent rebuttals to opinion pieces such as this. Send them to [email protected].


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