I went into private practice in 2012 and contracted with Churchill County in November of that year.

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1 My name is David Neidert. I am an attorney licensed since 1991 whose principle office is in Fallon where I serve as a contract public defender for Churchill County. Unfortunately, I could not be present to testify because I am defending a criminal client in a jury trial in Mineral County. I spent the first 20 years of my professional career as a prosecutor. For the first five years of my career, I served as a Deputy District Attorney, first in Humboldt County and then in Pershing County. I then spent 15 years as a Deputy and Senior Deputy Attorney General for the State of Nevada, all in its Criminal Division. During my career, I have appeared in every judicial district in the State of Nevada. I went into private practice in 2012 and contracted with Churchill County in November of that year. I am opposed to this bill. I start by noting that I received an amended version of SB377 on Friday and I assume that the amended version I received on Friday is the version before the committee today. Before addressing the contents of SB377, I would like to address the premise of this bill. At least in part, the premise appears to be that rural Nevada ill-serves indigent criminal defendants. I reject the premise. My experience is that, overall, the quality of indigent criminal defense in rural Nevada matches the quality of indigent criminal defense provided in Clark and Washoe Counties. But I am not asking you to take my word about the quality of rural indigent criminal defense. Rather, I would urge that you contact the rural district judges and justices of the peace ask them the following questions: 1) Do the indigent criminal defendants in your jurisdiction receive adequate representation from the public defenders? 1

2 2) Do the public defenders zealously represent their client s interests in your courtroom? Are the attorneys prepared and have they met with their clients? 3) Do you believe the county (or counties) you serve provide the resources for the public defenders to do their job adequately? 4) What are your thoughts on SB377? I believe their answers will be illuminating. And quite frankly, they, more than the Indigent Defense Commission, are in the best position to tell you if they perceive the same problem regarding rural indigent criminal defense that the Commission does. Turning to SB377 itself, four things stand out. First is the renaming of Office of the State Public Defender to the Office of Indigent Legal Services. The second thing are the legislative findings. The third is the creation of a new board to oversee indigent defense. Finally, there are new requirements regarding providing such services, particularly in rural Nevada. I would like to address each of these, starting with the name change. The bill changes the name of the State Public Defender without any explanation. Marketing experts will sometimes suggest a name change because the brand is damaged and by changing the name, the public might again become receptive to the product. In this case, there may be a very good reason to change the name: The Office of the State Public Defender has a terrible reputation in the legal community. I suspect most County Commissions will be mildly offended with the idea that renaming the State Public Defender will make the agency more palatable. Thirty years ago, the State Public Defender provided indigent criminal defense in most of rural Nevada. The only exception I am aware of was Elko County, which instead had created a county public defender office much like its Washoe and Clark County counterparts. Over time, the counties left this system. By the turn of the century, the State Public Defender provided representation in only seven counties. 2

3 Most recently, two counties in the Seventh Judicial District White Pine and Eureka left. The only counties that still use the State Public Defender to provide indigent legal services are Carson City and Storey County. The premise of SB377 is that these counties left the State Public Defender because of the cost that money was the driving force. While that may have been the reason for some, it was not for others. Rather, some counties perceived the State Public Defender was an agency with high turnover andwith inexperienced deputies who spent little time with their clients and who often appeared in court illprepared to proceed. The State Public Defender itself usually had minimal or no local presence in the actual county. These perceptions existed because, in many cases, they were true. Recruiting attorneys to practice law in rural Nevada is never an easy task. In my own case, it was not something that I had even considered before then District Judge Mills Lane suggested it to me shortly after I graduated from law school. Recruiting attorneys (and other professionals) to practice in rural Nevada is challenging. Even the largest community, Elko, lacks amenities that Reno and Las Vegas take for granted. Combined with the long distance required to travel to the major metropolitan areas (Elko is closer to Salt Lake City than Reno), there can be a feeling of isolation and lack of career opportunity that creates natural turnover in all of the professional communities. The State Public Defender had the additional problem that it could not pay attorneys a high enough salary to keep them. Until 2005, the State Public Defender s salary structure was substantially below that of other attorneys employed by the State of Nevada. The issue of state salaries is separate from that of this bill but it is related to the extent that whatever the new agency might be called, its attorneys are locked into the same salary structure as their other state colleagues. From my own experience, I know that a senior government 3

4 attorney employed by the State tops out 30% below their Washoe County counterparts and 40% below their Clark County counterparts. Rural district attorneys have begun to recognize that higher pay cuts down on turnover. Some rural offices now have pay scales that match those of Washoe County. A state agency, whatever it is called, will not have this ability. There is an old saying, actually a cliché, that you can t make a silk purse out of a sow s ear. Renaming the State Public Defender does not solve the problems which have plagued that agency in the past. Instead, it makes this bill look like a cheap marketing ploy. I am also concerned about the findings contained within this bill. The United States Supreme Court and the Nevada Supreme Court have grappled with what is required for adequate representation. As an attorney, I can imagine a host of litigation regarding what these findings mean and what the Legislature, as opposed to the United States or Nevada Constitution, require for adequate indigent representation. I have this concern despite the language in the findings disavowing any such intention. Also of concern is the insinuation contained within the findings that indigent defense has not lived up to the Strickland standard for effective assistance of counsel and that this legislation is necessary to correct that oversight. I do not believe the author of this legislation intended that insinuation but to the extent that SB377 memorializes this canard, I reject it completely. Turning to the Nevada Right to Counsel Commission, contained in Section 9, I want to preface any comment by stating I do not have any problem at all with objective criteria and objective measurements of counsel performance. However, this Commission, with an unworkably large membership, lacks ANY representation from an attorney who has current experience practicing indigent criminal defense since such an attorney would have a financial benefit from the policies adopted by the Commission. 4

5 I am also concerned that this Commission serves two distinct purposes. 1) Setting standards for indigent defense statewide, regardless of the provider; and 2) Supervising one such provider, the renamed State Public Defender. The conflict is obvious. This would be much like the State Taxicab Authority regulating taxi companies while operating one itself. Finally, I would like to discuss other portions of SB377 and the problems I perceive within its language. Section 11 has a poorly written new sentence which reads, (e) Contracted and appointed private attorneys engaged in public representation shall be permitted to continue retained work. This section was added to the latest version because of concerns raised by contract public defenders, such as myself, would effectively be put out of business because the amount of compensation those contract attorneys receive is supplemented by private practice. However, this section directly conflicts with Section 29, which REPEALS current law allowing the county public defenders to engage in the private practice of law. Frankly, I am at a loss as to why Section 29 is necessary, particularly if clear language is repealed in this section and garbled language is added in another. I have another, separate concern with Section 29 as well. NRS allows two or more counties to create a multi-county public defender system. Section 29 repeals NRS There is no explanation as to why such a system is bad. Currently, Eureka, White Pine, and Lincoln Counties use many of the same contract public defenders, as do Esmerelda and Nye Counties. While SB377 pays lip service to every county having a right to decide what system it wants to use, the very smallest counties in this state, Eureka, Lincoln, and Esmerelda, could be forced to use the State Public Defender, regardless of their preferences. 5

6 Quite frankly, I am puzzled as to what exactly happens if a county cedes authority to the Commission in Section 12 since Section 12 provides (a) The Commission shall deem the existing system for the provision of indigent defense services in the county appropriate. The logical assumption is that if a county cedes responsibility the renamed State Public Defender would take over. But that is not what this section says. If the current system is appropriate, why change it by having a new team of state employed attorneys take over? I would assume that the reality is that if a county cedes control of indigent legal services, the renamed State Public Defender would take over, Section 13 mirrors Section 12, but deals with counties choosing to retain their current systems. However, even counties retaining their current systems are required to turn over their appellate indigent services to the state. At a personal level, I find this provision insulting. I am a member of the Bars of the United States Supreme Court and the Ninth Circuit Court of Appeals. I have argued more than 20 times before the Nevada Supreme Court and the Ninth Circuit Court of Appeals. I have coauthored a merits brief and authored an amicus brief in the United States Supreme Court. I am a member of the CJA appellate panel for the United States District Court and a member of the Appellate Section of the State Bar of Nevada. I have also lectured and sat on panels discussing effective legal writing and research. To be very blunt, I am more than qualified to write my own briefs. This provision at least insinuates that small county public defenders of whatever stripe are incapable of handling their own appeals. I recognize that I may be unique in this way. However, as an appellate practitioner, I can state that good appellate practice is ongoing during the trial stage by the trial attorney spotting and preserving legal issues. 6

7 An appellate brief often builds upon motions already presented to the trial court. Indeed, if an issue is not properly preserved at the trial level, the issue is waived on appeal absent plain error. Thus, I see no particular utility in having a separate attorney, working for a separate entity, writing a brief to an appellate court when trial counsel is better equipped to do so. Indeed, the Nevada Supreme Court has recognized this, requiring trial counsel to prepare the Fast Track Statement in cases covered by its rules. I also have a practical concern. The Nevada Supreme Court adopted the Fast Track procedure to speed up the process so that prisoners wait the minimal amount of time necessary before their appeals are decided. This provision will slow down the process considerably. Additionally, if the issue is complex, the appellate attorney may not understand it as well as the trial attorney. For example, I recently had a case where the issue was whether my client was required to register as a sex offender. My research on the issue included not only a review of the relevant federal law surrounding my client s conviction, but a close examination of the legal documents surrounding his conviction contained within the federal PACER system. While this issue was resolved and no trial occurred, I shudder at the thought of an attorney who was unfamiliar with the PACER system and the federal criminal code trying to explain the argument I prepared for the District Court. Even if the appellate attorney cut and pasted my motion into a brief, that attorney would still have to understand the issue sufficiently to argue its merits before an appellate panel. Section 19 provides, in the most recent amendment, The Chief Counsel shall establish a branch office in each county that transfers responsibility for the provision of some or all indigent defense services in the county pursuant to section 12, 13 or 14 of this act. I suspect that this section was added because of the very real concern that if the renamed State Public Defender took over a county s indigent services, the attorney would come in from Carson City or some other 7

8 location, which is what happened in the past. But this provision is impractical. The caseloads in Eureka, Lincoln, Esmerelda, and Mineral Counties barely warrant a part-time position. None of these counties have a full-time attorney living there other than their District Attorneys. I also have a concern with the statutory declaration that each of these branch offices shall be independent for conflict purposes since this directly conflicts with Rule 1.8 of the Nevada Rules of Professional Conduct. In sum, I have profound problems with this proposed legislation. It is unnecessary and will create more problems than it solves. I know this statement is long. I want to thank you for taking the time to read this. David K. Neidert Attorney at Law 643 S. Maine St. Fallon, NV