Metropolitan News-Enterprise


Thursday, July 25, 2002


Page 4


Ninth Circuit Grants En Banc Review of Rights Suit Against Public Defender


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals will decided en banc whether a federal civil rights statute can be used to sue a public defender for ineffective assistance of counsel, the court said yesterday.

Chief Judge Mary M. Schroeder, in a brief order, said a majority of the court’s active judges had voted to grant review in Miranda v. Clark County, Nev., 00-15734. 

A three-judge panel held in February that while a public defender’s office, as a local agency, can be sued for implementing a policy that deprives individuals of federally protected rights, the representation of individual clients by attorneys in that office—even if “wholly inadequate”—is not the type of state action for which 42 U.S.C. Sec. 1983 provides a civil remedy.

The panel affirmed an order by U.S. District Judge Lloyd George of Nevada,  dismissing a suit by a former Nevada inmate whose conviction and death sentence were overturned and who was released in 1996, after 14 years in custody, following prosecutors’ decision not to seek a retrial.

Roberto Hernandez Miranda, now represented by the Jackson, Wyo. firm headed by legendary trial lawyer Gerry Spence, sued Clark County, longtime Public Defender Morgan Harris—who retired last October after nearly 30 years in office—and the deputy public defender who represented him at trial, Thomas Rigsby.

He claimed that Rigsby, who had been practicing for little more than a year when he got the case, interviewed only three of more than 40 potential defense witnesses named by Miranda and called none of them at trial.

Miranda also sued two since-retired detectives who investigated his case. Those claims are still before the district court.

Judge Stephen Trott, writing for the panel, said a criminal defense attorney does not act under color of state law, even if the state pays for his representation.

The law applies a “functional approach” to determining whether a person acts under color of law, Trott said. Since the deputy public defender’s work in deciding who to interview and who to call as a witness acts on behalf of the accused, not the state, just like  a private defense attorney, the publicly paid defense lawyer is not a state actor for Sec. 1983 purposes, the appellate jurist said.

Trott also rejected the contentions that Miranda was a victim of two unconstitutional policies of Harris’ office, one that required lawyers to “thr[ow] in the towel” and limit the amount spent on a case if the defendant failed a polygraph and another of assigning lawyers to cases they were not trained to handle.

The alleged polygraph policy doesn’t violate the Sixth Amendment right to counsel, Trott said, because the public defender is entitled to determine what resources to apply to each case. There is nothing in the Constitution that prohibits the public defender from using a polygraph to help make those decisions, the judge said.

As for the alleged inadequacy of Rigsby’s training, Trott said, the claim fails because the complaint does not allege that the training policies evinced deliberate indifference to the client’s constitutional rights.

“Rigsby is a law school graduate, a member in good standing of the state bar, and was hired for a deputy public defender position on the basis of his perceived abilities,” the judge wrote. “…The Sixth Amendment does not guarantee to Miranda, or any criminal defendant, the assistance of Perry Mason.”

Trott’s opinion was joined by Senior Judge Joseph Sneed and Judge Richard Tallman.


Copyright 2002, Metropolitan News Company