responsibility of a public defender

AN OPEN LETTER TO THE ATTORNEY GENERAL OF THE STATE OF NEVADA

The Honorable Catherine Cortez Masto

Attorney General of the State of Nevada
100 North Carson Street
Carson City, NV 89701-4717

What is the responsibility of a public defender towards a criminal defendant?

Is it to assist the accused in the preparation of a defense, as stated in the U.S. Constitution (6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial; by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. ) or not?

These questions are not asked lightly and are primarily based upon personal experience from more than 20 years ago in the State of California. Quite frankly, the process left me with disgust. The attorneys I encountered were among the rudest, most obnoxious people I had ever met. My first arrest was due to seizures I had been experiencing which were mistaken for illegal drug use, resulting in a diagnosis of PTSD and the loss of a job at a small computer company. Following this, I did exhibit some strange behaviors which resulted in several more arrests, including a warrant issued in the wrong name as well as being lost in the system twice, among other indignities.

I do believe in acting responsible and in 1992 received Honorable Mention for a paper I wrote on how mental health courts could provide better treatment while saving communities money. I later served on Judge Breen’s committee which helped to form Nevada’s first mental health court, as well as a volunteered on several mental health related boards. However, the memories of my experiences in the courts of Los Angeles still trouble me as they have negative implications for the future of America.

Step 4 of the Dalai Lama’s method of transforming anger is to take action which will help people who find themselves in a similar position as the incidents which made you angry. I view this letter as an action to help reduce injustice, which should result in Nevada, as well as the U.S., and the world becoming a better place to live.

While actions of individual attorneys did vary, and not all performed each of these actions, the basic performance was:

Upon meeting, tell defendant: “Plead no contest and I can get you out of jail by tomorrow.”
Should defendant protest innocence, tell defendant: “It doesn’t make any difference if you are guilty or not, plead no contest anyway, that’s the way the system works.”
Should defendant still protest: Display contempt towards defendant with a physical gesture.
Should defendant still protest: Inform defendant that charges will be increased, he will not receive any assistance from the attorneys, and he will spend years in prison, even if only charged with a misdemeanor.

I have also had attorneys tell me “We (the attorneys) decided that everyone charged with a crime will be found guilty of something”; “ If you were innocent, you would have been born rich enough to afford a good attorney”; “That’s all you people use as an excuse” (when attempting to obtain medication for my medical condition); as well as deliberately misleading me as to the meaning of ‘waiving time’ – lawyer short-hand for giving up the Constitutional right to a fair and speedy trial.

I came to understand, in time, that my experiences where not isolated incidents but rather the commonly accepted way of doing business in the courts of Los Angeles. As I understand it, changes in court procedure in some counties have resulted from economizing on the cost of court due to the increased expenditures imposed by Miranda v Arizona (384 U.S. 436, 1966). The above actions generally took place not in the court room, but in the conferences which occur prior to the proceedings which are closed to all except the attorney and defendant; except these conferences are typically crowded resulting in other defendants overhearing everything spoken.

Among the unintended consequences of Miranda are:

Police no longer give suspects an opportunity to clear themselves.
More suspects are arrested.
Plea Bargains have largely replaced Trials.
Crime is encouraged and rewarded.
The innocent, and those who have mitigating circumstances regarding the charges they face, are often scapegoated.
Police errors and abuse are often covered up.

The use of ‘waiving time’, lawyer shorthand for giving up the right to a fair and speedy trial, was common. When I asked my attorney what it meant, he said it was to delay a trail for a few days so he could get ready. A few days turned out to be 30 days, and then he just pressured me to plead ‘no contest.’ When I tried to enlist his aid in obtaining prescription medication for a condition I had since age 10 or 11, he told me “That’s what all you people use as an excuse.” After 74 days in solitary, I caved in order not to die in jail. The California Bar Assn. could not see anything wrong with the actions of this attorney.

The implications of Imbler v Pachtman, (424 U.S. 409, 1976) , as well as REHBERG v. PAULK No. 10–788( Argued November 1, 2011—Decided April 2, 2012) in which the U.S. Supreme Court encourages malicious prosecution is also troubling. Perhaps the justices in the majority should be impeached for their callous disregard of the Preamble to the Constitution: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

More about my experiences and observations regarding the criminal justice system, as practiced in Los Angeles County, can be found at The Plea Bargain System – An Evil Destroying America? http://youtu.be/VSZZXgevT7k .

While I have not heard of anyone in Nevada being subject to the extent of depravity under color of law, as commonly practiced in Los Angeles, many people I have spoken to believe they have been betrayed by their court appointed attorneys and unfairly manipulated into unjust plea bargains. It is also likely that many are in Nevada prisons and jails due to the effects of trauma. As I wait your considered response to the questions which I raise at the beginning of this letter, I hope you will take the time to read the book – Healing Trauma by Peter Levine, Ph.D. and also make your recommendations about how the courts should take the effects of trauma into consideration when certain criminal and domestic situations come before the bench.

Thank You for your attention to this matter,

Sincerely,

Robert S. Bennett

EC: The Commissioners of Washoe County