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A good defense: Sequester cuts threaten the federal public defender’s office

<p>THINKSTOCK</p>

THINKSTOCK

Fifty years ago, on March 18, the U.S. Supreme Court affirmed the right of all people, regardless of their economic status, to a legal defense in a criminal proceeding.

The landmark Gideon v. Wainwright decision means that an indigent defendant has the right to a lawyer in federal or state courts. It means that the Constitution obliges taxpayers to pay for that lawyer, in the name of equality before the law.

But some, including federal judges, now warn that the latest round of budget cuts in the federal public defender’s office is threatening that constitutional guarantee. Federal District Court Judges Paul L. Friedman and Reggie B. Walton wrote a Washington Post column this month urging the government to curb funding cuts to public defenders.

The Nevada District of the Office of the Federal Public Defender is one place where successive rounds of budget cuts, including the latest, courtesy of the “sequester” deal, are undermining the defenses of indigent clients. Already, expert witnesses have been eliminated, layoffs have occurred and the remaining members of the 80-person roster of lawyers and support staff will lose weeks of pay through mandatory furloughs.

The federal public defender’s office is far from the only federal agency affected by the sequestration struck by the White House and Congress last year. It went into effect in February and promises to trim $85 billion from the budget this year and $1.2 trillion over 10 years. Airline travel, school lunch programs, border security and many other programs have been affected.

The cuts to the federal public defender’s office, however, threaten the constitutional bedrock of American government and society.

“We will do our damnedest to fulfill our obligations, but we are being hit hard,” said Rene Valladares, federal public defender for Nevada. “It is very difficult to meet those constitutional obligations. We have outstanding lawyers in this office, but our capability of fulfilling our mandate is certainly threatened.”

Ultimately, if an indigent client is denied a credible defense, the courts can throw out convictions, upending the justice system.

There are those who insist that anyone arrested for a crime must be guilty. Former Attorney General Edwin Meese famously said, “But the thing is, you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.” So why worry about such niceties as government-provided defense attorneys? Because a lot of suspects aren’t, in fact, guilty; some have been railroaded by overzealous cops and prosecutors, others are victims of eyewitness accounts that have proven to be profoundly liable to error. Since 2000, more than five dozen death penalty cases around the nation, and hundreds of other serious criminal convictions, have been overturned on various grounds — including the innocence of the convicted.

Indeed, the importance of the issue came into focus last month here in Southern Nevada. Eleven years after the murder of Gerald Stoules, a North Las Vegas man, federal District Court Judge Elissa Cadish tossed the conviction of a transient and former roommate of the victim.

“… It is more likely than not that no reasonable juror would have found the defendant guilty beyond a reasonable doubt,” Cadish said in her ruling last month.

Frederick Steese, who confessed to the crime in a lengthy written document in 1995, while simultaneously insisting that he was in another state at the time, remains incarcerated and awaits a hearing in Florida on 25-year-old parole violations.

But for Ryan Norwood, the assistant federal public defender who handled the case, Cadish’s decision represents the likely end of five years of work, since he took over the federal petition. Along the way, Norwood and the court found that Steese, who has an IQ in the 70s, confessed to a crime that he could not have committed because he was in Idaho at the time of the murder.

Cadish’s decision was based on new evidence, evidence that was never turned over to the defense from the original investigation, and an examination of the techniques that police used to elicit the confession.

Norwood sees the Steese case as a warning. Innocent people not only are convicted of crimes that they did not commit, but innocent people sometimes confess to crimes of which they had no part.

“Some police officers are so good at it that they get innocent people to confess,” he said. And Norwood and his colleagues are worried that they are losing the ability to represent cases such as this. (Norwood said he is not one of those laid off by the budget cuts, although he has weeks of unpaid furloughs to come and one of his investigators has been fired.)

“We have had cuts. We generally have had the resources we needed to do the job,” he said. “That will still be the case, but these sequestration cuts are really. … We can’t afford that many more.”

Tod Story, director of the American Civil Liberties Union of Nevada, noted that the right of the indigent to have a credible defense is a constitutional guarantee under siege.

“There is no question that this right is afforded to every citizen in this country,” Story said. “It must be provided. Some people have the ability to hire their own defense. Those who do not, must be provided defense.

“You cannot have a system where potential criminal cases are treated differently based on the person’s ability to pay. … We are creating a system, and the sequester is only exacerbating the problem, that favors those who are able to pay for their own defense. Not only is it unconstitutional, it is unfair that equality under the law, or what is supposed to be equality under the law, is favored for those with the means to pay.”

Valladares, of course, agrees. An immigrant from Nicaragua, he is a believer in his adopted country’s justice system.

“What makes this country what it is, such a great system of justice, is that we believe in fundamental fairness,” he said. “It doesn’t matter if you are rich or you are poor, you are going to be represented in the justice system. You cannot go ahead and do that unless offices like mine are properly funded.”