LAS VEGAS, NV – The American Civil Liberties Union of Nevada today (August 1, 2012) moved to join the amicus curie brief filed July 5 by the Nevada Attorneys for Criminal Justice (NACJ) in support of the lawsuit brought by the Washoe County Public Defender’s Office and Jeremy Bosler to challenge the constitutionality of a “pilot” early case resolution program (ECR) for Washoe County.

The pilot program of an Early Case Resolution system was initiated on June 8, 2012, in an administrative order (2012-07) issued by David A. Hardy, the Chief Judge of the Second Judicial District Court. Early case resolution programs are designed to shorten the adjudication process of criminal cases, and ostensibly to result in cost savings. An early case resolution program has been discussed in Washoe County for several years, and the American Civil Liberties Union of Nevada has consistently questioned such a program because it would deprive defendants of their due process rights under the Sixth Amendment of the U.S. Constitution.

The Public Defender’s lawsuit charges that the Washoe County ECR pilot program fails to provide effective representation for criminal defendants in violation of the Sixth Amendment of the U.S. Constitution. It also states that the administrative order purporting to implement the pilot violates controlling provisions of the Nevada Revised Statutes and the Second Judicial District Court’s ADKT 411 administrative plan.

The Washoe County website says, “On January 4, 2008 the Nevada Supreme Court issued ADKT 411 and made sweeping changes to the way indigent persons are represented. The order adopts performance standards for public defenders that will help ensure that defendants are provided appropriate representation. ADKT 411 includes specific performance standards regarding indigent representation in death penalty cases, adult criminal cases, juvenile cases, and appellate practice. The Nevada Supreme Court also ordered that Washoe County and Clark County perform weighted caseload studies to determine the appropriate workload for their indigent defense programs.” See http://www.co.washoe.nv.us/defender/adkt.html.

“The independence of counsel acts as a critical guarantor of effective representation,” observed Staci Pratt, Legal Director of the ACLU of Nevada. “The proposed pilot would undermine that independence, all in pursuit of illusory efficiencies. The Constitution demands that we ensure those accused of a crime have meaningful access to independent counsel. Namely, this should not be counsel administratively reduced to the narrow role of a ‘plea-negotiator.’”

The NACJ amicus brief, written by Franny A. Forsman, the former chief federal public defender in Nevada, and Marc Picker, argues that the ECR program interferes with the independence of criminal defense counsel; violates Nevada Revised Statutes 7.115 and 171.188; creates legal ethics violations for both public defenders and private criminal defense counsel; and ensures that convictions will be vulnerable to charges of both ineffective counsel and “Brady violations” (guarantees of consideration of exculpatory evidence). Further, it states that costs can be reduced, while constitutional rights are preserved, through the use of an appropriate mandatory status conference program.

Dane Claussen, Executive Director of the ACLU of Nevada, said, “Early case resolution proponents seem to think that the paramount objectives of the justice system are to save money, save time, and to prevent or limit any inconveniences that anyone involved experiences unless a defendant is sentenced to jail time. But the paramount objective of the justice system is justice itself, which by definition requires constitutional due process.”

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