When an insider can't change the way a large bureaucracy does things, it's sometimes smart to bring in an outsider to shake up the place. Someone who doesn't accept that's how we've always done it as a reason for not changing.
In short, sometimes you need an asshole willing to make things bad in the short term in order to make them better over the long haul.
Now, if you apply that standard to, say, the Clark County Public Defender's Office—whose attorneys have been harshly criticized for doing little work for huge pay—you might expect the people most responsible for meting out justice, the judges, to support someone willing to shake things up, pitch the deadwood, clear the way for unfettered justice.
You would expect wrong.
Last week, Chief District Court Judge Michael Douglas said he found it insulting to Nevada lawyers that Clark County would launch a national search to replace Chief Public Defender Marcus Cooper, who is retiring in January. Beyond the cloister of judicial chambers, Douglas' comments barely registered on the controversy meter. But they reverberated in the Clark County Government Center and among county commissioners—particularly since this is a County Commission trying to overcome the withering public perception that county government only responds to the needs of special interests.
"It's none of their business," a top county administrator said of Douglas and like-minded judges. "We're going to [do a national search] anyway."
In an interview with Las Vegas Weekly, District Court Judge Lee Gates said what other courthouse sources would only whisper anonymously—that Douglas' stand "is bullshit."
"You've got a lot of these guys in [the courthouse] thinking they'll have to work harder if you get a good public defender," Gates said. "They think it's going to cause more trials, and they're only interested in trying to keep down their workloads. That shows you the mentality of the folks in this place. … It's pathetic, man, what they do. It's so parochial."
Gates also said that Douglas has "lobbied" some on the Nevada Supreme Court to deny Clark County's request for a waiver so that they can hire someone who hasn't already passed the Nevada State Bar. State law decrees that "the public defender shall be a qualified attorney licensed to practice in this state." That means passing the state bar exam, considered one of the toughest in the country. To hire someone from out of state without a Supreme Court waiver—which have been routinely given to hires for other positions, such as university administrators—might be next to impossible.
In response, Court Administrator Chuck Short said that he "understands" Gates comments, though he's "not sure it's accurate."
"I don't have a horse in this," he went on. "And whatever they decide in the Clark County Government Center is fine with me."
He also said he had no firsthand knowledge of Douglas or any other judges lobbying the Supreme Court. A spokesman for the high court also said he had no knowledge of anything like that taking place. Douglas did not return a phone call for comment.
"Here is the crux of the matter," says Gary Peck, executive director of the American Civil Liberties Union of Nevada. "There are those who want the public defender to be an agent of change; there are others who want the public defender to preserve the status quo."
Three years ago, a highly publicized report noted that the average annual salary in the public defenders office was about $93,000 annually—one of the highest, "if not the highest," in the country. That report, from the Massachusetts-based Spangenberg Group, also found that fewer than 1 percent of all cases handled by the office ever went to trial. That compared to a national average of 4 to 7 percent. The report also found that the "institutional philosophy" of the public defenders office had formed "whereby a strong adversarial defense is seen as counterproductive to the continued health of the organization."
Shortly after that report came out, Chief Public Defender Morgan Harris retired and Reilly hired Marcus Cooper, who'd worked in the PD's office 24 years, to take over. Reilly was roundly criticized for the hiring: Would another insider have the backbone to make changes in an office that had grown complacent? And though Reilly's office has put a positive spin on Cooper's two years at the helm—among other things, the office's trial rate increased 11 percent (from roughly 200 cases to 220 cases per year), and he set up an Indigent Advisory Committee—sources confirmed that Cooper's retirement was partly due to pressure from local groups that argued his the slow-moving changes were putting the county in troubling legal waters.
So when Cooper announced his retirement, hope returned that the county would get someone in there who would change things around. Then Judge Douglas' remarks surfaced. After a phone call with Douglas and Short, Assistant County Manager Catherine Masto summarized their concerns in an e-mail to her boss, County Manager Thom Reilly, and copied to Clark County commissioners.
"Chief among their concerns," wrote Masto in the e-mail obtained by Las Vegas Weekly. "1) It's a slap in the face to the local bar; 2) Someone from out of state would not be familiar with this region; 3) If the person does not pass the bar, it would be an embarrassment to the individual, county and the office; 4) Someone from out of state would not know how to lobby county management and the commissioners to obtain the resources they need for the office."
Peck called such reasoning "ass backwards."
"It's actually an insult to the local bar by saying that they can't compete on a level playing field; it's just ridiculous," he adds. "And it's a replay, in some ways, of what went on (when Morgan Harris retired) with one important difference: The county now seems, to its credit, to be doing this search for the largest pool of the most talented candidates possible."
Peck also noted that a new administrator who doesn't fix the office is opening up the county to a slew of lawsuits. In April, a National Legal Aid and Defender Association report stated that the public defenders office needed to address staffing and performance issues "to avert constitutional challenges of ineffective assistance of counsel."
Beyond that, Peck noted, is the issue of fiscal responsibility, no small matter given the state's budget woes. "If a light is shed and the public understands that what we are talking about are exceedingly well-paid lawyers who are not doing their job, who are essentially taking their paychecks and giving the public little in return, I assure you, there will be a lot of angry people."
What, you might ask, is so wrong about judges weighing in on who should or should not be the head of an office that the judiciary doesn't oversee? Plenty, says Norman Lefstein, professor and dean emeritus of the Indiana University Law School-Indianapolis, and a member of the American Bar Association who helped draft guidelines for the hiring of public defenders. Chief among those guidelines: Keep judges away from the process.
"It's very clear that judges should have nothing whatsoever to do with the selection of a chief defender, they ought not to have any influence," Lefstein says. "You want in the criminal justice system defense attorneys, as well as prosecutors, who are independent from the judiciary. The risk [of not having that] is considerable."
As an example, he pointed to a case he heard recently, as head of the Indiana Public Defender Commission, in which a judge refused to appoint a particular lawyer "because the lawyer was filing too many motions and visiting clients in jail too often." The judge saw this is a problem, because other lawyers, who did not visit their clients as often, were getting complaints from their clients, who wanted similar attention.
"That kind of thing is repeated around the country," Lefstein adds.
Several sources pointed out that Lefstein's example isn't far off base within Clark County's District Court system. One court source, who only spoke on the condition of anonymity, admitted that he admired how former Chief Public Defender Morgan Harris did his job. "He was a go-along, get-along kind of guy. … In my experience over the years, he created a nice balance that was pretty efficient and cost-efficient."
The source added that to bring in someone more adversarial and less likely to cut deals and take more cases to court—"someone who wants to play hardball"—would mean more expense for Clark County taxpayers. "The number of judges you would need is going to be unbelievable, the public cost huge," he said.
And it's not as though the current crop of judges aren't working very hard, Short notes. In just the last year, the number of trials heard by District Court judges increased 25 to 30 percent. "This is the hardest-working group of judges that I've see, bar none," he added. In 2002's Judicial Case Activity Report, Judge Gates ranked as the fourth hardest working of 19 District Court judges; Douglas ranked 18th.
"If either the district attorney or the public defender brings that (hardball) philosophy," Short adds, "it will cost the taxpayers a lot more money to obtain justice in Clark County. That's the bottom line, and there is a concern. Because whether it's the DA or the public defender, their individual philosophies carry great weight."
Even Gates agrees that someone determined to increase the trial rate of the public defenders office to, say, national averages—meaning the number of trials would rise from around 200 to 1,650—is going to ruffle feathers. Not only because it will mean more work for the lawyers and judges, but because of the immediate cost. That said, Gates stresses that the long-term benefit to the system would be incalculable.
"If you think about it, if you raised the standards of the public defenders," he says, "you'd also raise the standards of all the district attorneys who have to deal with them, as well as the judges. The expense might be heavy in the short term, but in the long term it would benefit all of us. Now what's wrong with that?"