Harmful Error

For the most part I keep posts on this blog fairly neutral and free from my opinions. This is not one of those posts. The opinions reflected here are my own and do not necessarily reflect the views of the NACJ Board or other members, though if they do not agree with the crux of the post they probably should be ousted from the organization. Again, just my opinion.

As noted in previous posts, the Indigent Defense Commission met for a substantial period of time, met with attorneys and experts in the area of criminal defense, and over many meetings, including a Public Meeting which was open to prosecutors, developed Nevada Indigent Defense Performance Standards. These standards were developed with the laudable goal of improving attorney representation to indigent defendants and contained fairly basic standards, such as requiring attorneys to meet with their clients, understand the discovery and conduct reasonable investigation prior to entering a plea, and provide actual representation during sentencing, which is often one of the most crucial stages of the proceedings for a substantial number of clients.

All good. All good until March 21st, when the Nevada Supreme Court postponed implementation of the Performance Standards and invited the District Attorneys' Association to join the Commission and to provide suggested recommendations to the Performance Standards. I suppose it could have been a welcome addition, had the DA's Association agreed with the mission of Indigent Defense Commission, which is to improve performance of appointed counsel, and had it understood that the system as a whole is best served when criminal defendants (who face a loss of their freedom, liberty and many of their civil rights) receive high quality representation. It might have been expected that the DA's Association would understand this principle based upon the fact that a lead prosecutor complained, during oral argument before the Supreme Court just last week, about the substantial number of reversals of convictions and death sentences that are taxing the resources of the prosecutors. Or perhaps the DA's Association could have recognized the need for improved defense representation from cases in which indigent defendants were wrongfully convicted, and later released from custody, based in substantial part upon the performance of their court appointed counsel. If nothing else, the DA's Association should have learned something from the $5 million judgment against the County in the Roberto Miranda case and the pending case against the County based upon the wrongful conviction of Robert Hays.

The DA's Association, however, doesn't get the point and instead wants the Court to adopt "guidelines" with the mediocre goal of ensuring that defense counsel is "competent." In other words, the DA's Association wants the Court to tell defense attorneys that it would be really nice if they could somehow manage to meet the floor established by Strickland. And the DA's Association proposed changes do not end there. It also proposes that public defenders not be paid the same salary scale as prosecuting attorneys because of "workload" differences; defense attorneys be allowed to attend PSI interviews only if they are "invited" to do so; defense attorneys not be required to learn of collateral consequences to a plea and instead advise clients of these consequences only to the extent that they are already known to counsel; consult with clients concerning fast track appeals only if there is time to do so; and require that attorneys convey "early case resolution" offers to clients even if counsel has not had the opportunity to conduct a reasonable review of the discovery or conduct any investigation. Basically, the DA's Association wants the situation to remain the way it is but also wants make sure that prosecutors can be paid more than defense attorneys.

The Supreme Court's Indigent Defense Commission is scheduled to meet today to discuss the DA's Association's proposed changes as well as a proposed model plan for the appointment of counsel.

If the Commission adopts the the DA's Association proposed amendments, the Court should also consider disbanding the Commission and instead create some other Commission, maybe called "The We're Okay With Being Mediocre Commission" or "The Bare Minimums and Nothing More Commission" or the "Let's Let The Prosecutors Run Criminal Defense Commission." My hope is that the Commission will not just politely vote "no" to these proposed changes, but will say "hell no" to these asinine suggestions.

The Commission's original proposed Standards were the product of thoughtful and considered work by Commission members who are devoted to improving the level of practice of appointed counsel. A few typographical and clarifying amendments should be made, but the substance of the standards should remain and they should be implemented as soon as possible.