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9th Circuit Says Public Defender Can Be Sued

Jason Hoppin
The Recorder
02-05-2003

The 9th U.S. Circuit Court of Appeals put public defender offices on a liability hot seat Monday by reinstating the case of a convicted murderer who said his lawyer's ineffective assistance violated his civil rights.

In siding with Roberto Miranda, a man who spent 14 years on Nevada's death row, an en banc panel sent a strong signal that counties risk hefty civil judgments if they don't adequately fund public defender's offices.

"This decision should be brought to every government official who has some impact and decision-making power over public defender budgets," said San Francisco Public Defender Jeff Adachi.

The court voted 7-4 to reinstate Miranda's lawsuit against the Clark County public defender. He blamed his prison stay on an inexperienced prosecutor and office spending policies. After his conviction was tossed out on appeal, he sued his former lawyer, the public defender and Clark County. The district court said the claims were baseless, and a three-judge 9th Circuit panel agreed.

Ninth Circuit Chief Judge Mary Schroeder, writing for the majority, affirmed the dismissal of the claims against Miranda's lawyer, who was trying his first murder case. The man acted as Miranda's lawyer, not as an agent of the state -- even though, Schroeder wrote, he "did essentially nothing." She distinguished between a lawyer making independent decisions on behalf of a client and decisions based on an office's allocation of resources.

But former Clark County Public Defender Morgan Harris was an agent of the state, the court ruled, so those claims were reinstated. Harris used polygraph tests to help determine how much money and time to spend on clients, and Miranda failed his.

Judges Andrew Kleinfeld and Barry Silverman wrote separate dissents from the reinstatement of claims against Harris. However, Silverman and fellow dissenters Joseph Sneed and Thomas Nelson voted to reinstate the claims against Clark County itself, making the vote on that claim 10-1.

"The county doesn't have anything to do with assigning work to public defenders and doesn't have anything to do with training or licensing lawyers," Kleinfeld wrote in Miranda v. Clark County, 03 C.D.O.S. 1037. That is up to law schools, he explained.

One of Miranda's Wyoming lawyers, Spence, Moriarity & Shockey partner J. Douglas McCalla, said lawyers aren't ready to try murder cases out of law school without additional training.

"When you get out of law school, you don't know where to file a case, much less defend capital cases," McCalla said.

Based on the tip of a man Miranda's lawyers believe was the real killer in the 1981 stabbing, the 59-year-old Cuban immigrant was tried and sent to death row despite providing a list of dozens of witnesses, most of whom were never interviewed. He was released 14 years later when a Nevada judge ruled his lawyer was ineffective. He was never retried.

Miranda has an ongoing civil rights lawsuit against two Las Vegas police officers who worked on his case. Both McCalla and his associate, Larissa Ferullo, didn't think Monday's decision would lead to an outbreak of civil rights claims against public defenders.

"I don't think it's going to open ineffective assistance floodgates. ... I don't think it's going to affect every little thing," Ferullo said.

"These cases like ours are very, very few and far between. But they do exist, and there ought to be a remedy," McCalla said.

A call to the Clark County Public Defender was not returned.

San Francisco officials should heed the ruling, Adachi said. He pointed out that although his staff is just more than half the size of District Attorney Terence Hallinan's staff, it represents 80 percent of those charged. His budget is dwarfed by Hallinan's, while the district attorney has the added benefit of millions in state and federal grants.

"It raises real concerns because the public defender has often been treated as an unwanted stepchild of the criminal justice system," Adachi said. "This says very clearly that you will be held to that constitutional duty" to provide effective representation in court.