Metropolitan News-Enterprise


Tuesday, February 4, 2003


Page 1


Suit Against County, Pubic Defender for Poor Defense Reinstated


By ROBERT GREENE, Associate Editor


A county public defender who established a policy of giving lie detector tests to every client and who allegedly assigned inexperienced lawyers to defend capital cases can be held liable under civil rights laws for denying defendants effective counsel, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Although the deputy public defender who took the client’s case to court cannot be held accountable for his actions under 42 U.S.C. Sec. 1983, the court held, the county, and the county employee with administrative control over the office, can be.

Ruling en banc in a lawsuit brought in Nevada by a man convicted of capital murder and imprisoned for 14 years, the Ninth Circuit ordered the trial court to reverse itself and hear the case.

Chief Judge Mary M. Schroeder wrote that the complaint filed by Roberto Hernandez Miranda made a sufficient civil rights claim against Clark County Public Defender Morgan Harris to warrant trial.

Unlike the deputy, who was acting as Miranda’s attorney and is thus subject to standards of professional ethics, Harris was not acting in his capacity of a lawyer when he established office policy that Miranda argues led to a half-hearted defense, Schroeder said.

Attorney Thomas Rigsby was out of law school less than a year when Harris’ office assigned him the death penalty case.

Harris retired in 2001 after holding the job for nearly 30 years.

“The nature and context of Harris’s function was administrative,” Schroeder said. “He was, according to the complaint, acting solely as the administrative head of the agency, responsible for allocating the office’s finite resources. Also according to the complaint, he instituted certain policies as part of his administrative functions that resulted in the miscarriage of justice represented by the plaintiff’s death sentence and murder conviction.”

Harris carried out a policy, which his lawyer said already was in place when he took the job, of giving a polygraph test to every client the office represented.

As interpreted by the majority opinion, Miranda’s allegation was that the results of the test dictated how seriously the Public Defender’s Office worked to represent its client. A client whose test results indicated innocence might be defended vigorously while one whose results showed guilt would receive only limited investigation and minimal defense, Miranda claimed.

Schroeder said Harris, who allocated state funds within the office, was acting on behalf of the county in making his decisions and thus qualified as a “state actor” under Sec. 1983.

While not reaching the question of whether Harris actually used the lie detectors to determine how to allocate his resources, the court said Miranda’s allegation about polygraphs was a sufficient claim of a governmental deliberate indifference to the requirement that every criminal defendant receive adequate representation.

“This is a core guarantee of the Sixth Amendment and a right so fundamental that any contrary policy erodes the principles of liberty and justice that underpin our civil rights,” Schroeder said.

The 11-judge panel was not unanimous. In a separate opinion from which he dissented as to the ruling on Harris, Judge Andrew Kleinfeld wrote Miranda never actually alleged that the purpose of the polygraphing was to ferret out the loser cases. Besides, he said, there are good reasons for a public defender’s office to give its clients lie detector tests other than determining who was and who was not worthy of a serious defense.

“Maybe to those who haven’t done any criminal defense, it isn’t obvious why a polygraph examination would be used except to sort out the innocent from the guilty,” Kleinfeld wrote. “But to an experienced criminal defense lawyer, the distinction between lying and telling the truth is altogether different from (and much more important than) the distinction between guilt and innocence.”

Criminal defendants often lie to their lawyers in ways that hurt their own cases, he said, even after they have told the truth to police, preventing effective plea negotiations or preparation of a solid defense.

“The problem with the lying client isn’t that he’s guilty,” Kleinfeld said. “One hopes, if one does criminal defense, that most clients are guilty, because of the terrible risk of an innocent person being convicted. The problem is that the lying client wastes the lawyer’s time and his office’s resources with a whole lot of rabbit tracks that consume scarce investigative and legal resources but don’t lead anywhere. The majority opinion, by carelessly reading into the complaint what isn’t there, overlooks what is there. Miranda accuses Harris of using the polygraph to sort out which clients get more resources allocated to them due to a perception of truthfulness, not because the polygraph indicates guilt.”

Miranda also charged that Harris established a policy of assigning the least-experienced lawyers to capital cases.

The U.S. Supreme Court has ruled that as a matter of law, attorneys who have graduated from law school and passed the bar exam should be considered adequately trained to handle capital cases.

But Schroeder noted that Miranda alleged a deliberate pattern and policy of refusing to train lawyers for capital cases. Those allegations were sufficient to establish a claim of deliberate indifference to constitutional rights, the chief judge said.

The case is Miranda v. Clark County, 00-15734.


Copyright 2003, Metropolitan News Company