The August firing of the executive director of Nevada’s Department of Indigent Defense Services (DIDS) could jeopardize efforts to provide equitable legal representation to people who don’t have the financial means to afford an attorney, according to the chair of the board that oversees the department.

Laura FitzSimmons, who chairs Nevada’s Board on Indigent Defense Services (BIDS), told The Nevada Independent that former Executive Director Marcie Ryba was “abruptly terminated” by Republican Gov. Joe Lombardo’s chief of staff Aug. 30, without legitimate cause, warning or communication with any board member. 

The department, created by the Legislature in 2019, aims to level the playing field of publicly funded criminal defense services amid a lawsuit from the ACLU indicating that defendants were getting subpar representation in rural counties.

FitzSimmons said Ryba was fired after she asked to pursue $2.3 million in funding to increase compliance efforts from a $12 million contingency account. She said it also followed a dispute with Lombardo’s appointed state public defender, Patty Cafferata, about which agency was responsible for paying post-conviction bills. 

Ryba had also begun supervising Cafferata following documented reports that Cafferata did not ably represent clients in criminal cases.

“It doesn’t show good faith on the part of the state,” FitzSimmons said about how the firing by Chief of Staff Ryan Cherry could negatively affect compliance with a court agreement to provide the Constitution’s Sixth Amendment right to an attorney in criminal cases. She added the compensation rate for the executive director position, like many other state positions, is low, which makes it difficult to attract qualified applicants. The annual salary on the position is listed as up to $176,555.

If the governor’s office fires directors they disagree with, FitzSimmons said, that could also deter future applicants. Board member Jarrod Hickman shared FitzSimmons' concerns in a Thursday board meeting, saying “it’s critical to protect the office from political influence.”

Under Nevada law, DIDS is the sole agency within the executive branch that stipulates its director can only be terminated by the governor “upon a finding of incompetence, neglect of duty, commission of an act that constitutes moral turpitude, misfeasance, malfeasance or nonfeasance in office or for any other good cause.” The governor selects the executive director, appointing the position from a list of three people recommended by the board.

Advocates and board members said this was designed to remove the position from political pressure because indigent defense services are not often a budgetary priority. 

Lombardo spokesperson Elizabeth Ray said the governor’s office cannot discuss personnel matters and did not comment further about Ryba’s firing. She said the office has met with the chair of the board, FitzSimmons, and expects the board to present three names to the governor for consideration for the executive director appointment. 

“In the interim, the governor’s office has full faith in Acting Executive Director Peter Handy to continue the administration of DIDS to comply with the [the legal mandate],” Ray wrote in an email.

FitzSimmons, an attorney who was appointed to the board by former Democratic Gov. Steve Sisolak, and who has served as a personal attorney for Sisolak, said that no one has applied for the executive director position to date. The job was posted 10 days ago.

Members of the board issued a statement at a Thursday meeting expressing confidence in Ryba’s work for DIDS, thanking her for her efforts and indicating she did not meet a standard to be fired. One member of the board, Joni Eastly, indicated opposition to the statement, not because she didn’t support Ryba or her work, but because state law does not require notification by the governor of his decision, which the statement discusses.

The statement came in a more than two-hour meeting Thursday afternoon, where members ran through an agenda that began with a recognition of Ryba for her service, included discussions of concerns about Cafferata's qualifications and considered impediments to compliance with a legal mandate stemming from a lawsuit brought by the national office of the American Civil Liberties Union against the governor and state in 2017.

The lawsuit, Davis v. Nevada, argued that the state was violating residents’ constitutional rights to adequate legal representation by flat-fee contracts with defense lawyers in rural counties, which created an incentive to close cases as quickly as possible. In 2020, they reached an agreement — in the form of a consent judgment — outlining steps the state needed to follow to ensure adequate representation for people who could not afford a lawyer.

Attorneys with the ACLU sent a letter in September voicing concerns about “recent staffing changes” and estimated that if compliance with the Davis judgment is not met, the state could incur more than $10 million in future litigation costs.

As the ACLU’s lawsuit made its way through the court system, the Legislature passed a bill in 2019 establishing the Nevada Department of Indigent Defense Services and Board on Indigent Defense Services. The board is designed to uphold statewide standards of public legal defenses and oversees the DIDS director. The executive director of DIDS oversees the State Public Defender’s Office, which provides legal representation to people accused or convicted of a crime who cannot afford to hire an attorney in counties that opt into the program. White Pine County is currently the only county using the program.

To help counties cover the cost of providing legal services, in 2023, the state created a way to fund public defenders and awarded $7 million to DIDS as part of a two-year budget, plus set another $12 million into a contingency account specifically for indigent defense services through the department, capping the amount rural counties would pay for indigent defense services, with the state covering the rest of the costs.

FitzSimmons said that under Ryba’s direction, DIDS was making progress in complying with the legal mandate, which has a November deadline. However, FitzSimmons warned that Ryba’s termination could be grounds for continued litigation between the state and the ACLU and potentially jeopardize relationships with rural counties, which FitzSimmons said don’t trust the state to follow through on its promises. 

She added that she did not believe the governor knew about Ryba’s termination. In the Thursday meeting, she described the firing as a “tribal and ill-conceived” decision by Cherry and Deputy Chief of Staff Jim Wells — a concern she said she voiced to them. FitzSimmons and other board members said they would make an appointment with the governor to speak about the issue.

As for concerns surrounding Cafferata’s job performance, Ray said, “existing regulations address and provide processes for review of any concerns related to defense representation.”

Cafferata, 83, has a long political history in Nevada. Her mother is the late former Rep. Barbara Vucanovich (R-NV), and Cafferata was the first woman elected to a constitutional office in Nevada when she won the race for state treasurer in 1978. She served as a district attorney in Lincoln, Esmeralda and Lander counties and was an at-large delegate to the 2016 Republican National Convention from Nevada.

Cafferata had a previous commitment and could not attend the meeting but was represented by attorney Rew R. Goodenow. Goodenow said he was representing her because she had “concerns with respect to her reputation because some of the issues raised could reflect on her.”

A September site visit report from White Pine County filed by an outreach and compliance adviser said judges in the county “expressed concern about the representation of Patricia Cafferata,” referring to Cafferata’s failure to make a mental health mitigation argument in a case, leading the court itself to do so, and an instance where Cafferata asked the state for an explanation during proceedings.

“It is incumbent upon the Department to determine if there is sufficient criminal defense experience within the State Public Defender’s office to handle the various levels of criminal cases,” the compliance adviser wrote.

Before becoming the state’s public defender, Cafferata applied to work with the state’s public defender's office and, after she was hired, problems emerged. DIDS received a letter from the Storey County District Attorney Ann Langer in May 2023 expressing alarm regarding the new attorney’s (Cafferata) inability to represent her clients. Langer wrote in the letter that though Cafferata had experience as a prosecutor, it does not appear to have given her the required skills, training and background to perform her criminal defense duties.

“The current situation is untenable, potentially compromises the constitutional rights of the accused, and creates a risk of liability exposure to the County,” Langer wrote. “It cannot be allowed to persist.”

FitzSimmons said the State Public Defender System has concerned DIDS and the board. Low salary ranges have left many positions open, and recruitment has been challenging. The state public defender’s salary is up to $134,342, depending on experience and involves both supervising other attorneys and personally appearing in court. 

When the state public defender resigned in January 2024, FitzSimmons said Ryba emailed the governor’s office to inform it of the resignation and offered to help with the next appointment, but received no response.

FitzSimmons said the position was not advertised and in February, was given to Cafferata, who has a long history of political connections in the state.

She said the board was unaware of issues surrounding Cafferata’s representation until she requested information from the department’s staff. 

“Since DIDS was completely left out of the loop, we are now left with a state public defender whose court appearances have generated continued concerns from judges, prosecutors and the Davis compliance observer,” FitzSimmons said. “When Ms. Ryba tried to supervise Ms. Cafferata, she was terminated.”

Goodenow said during the Thursday meeting that he had received the documents referenced in this article but would need more time to address them. The board and Goodenow agreed to discuss the issue in 21 days.

During the meeting, FitzSimmons acknowledged Cafferata’s decades of experience and said the discussion in the future would center on Cafferata’s qualifications and capabilities as a defense attorney and was not personal. 

“She knows more about the history of Nevada and its courthouses than anybody,” FitzSimmons said. “The only thing this board is going to be talking about with respect to Ms. Cafferata is whether or not she has the experience, training and ability to provide constitutionally adequate defense to indigent defendants in Nevada.”