Gideon Alert: Nevada reform stalls over definition of a "case"

BY David Carroll on Wednesday, June 23, 2010 at 9:21 AM

How many cases are too many?  The Las Vegas Review-Journal reports that the Nevada Supreme Court Indigent Defense Commission can’t get to the question because they are hung up on the definition of a “case.” 

The Conference of State Court Administrators and the National Center for State Courts first established a uniform definition of a case in their joint 1989 publication State Court Model Statistical Dictionary.  It instructs administrators to “[c]ount each defendant and all charges involved in a single incident as a single case.”  The latest version of this report continues to promote this definition and is widely available through the Department of Justice, Bureau of Justice Statistics’ Court Statistics Project website.

This definition has also become the standard used in all case-weighting studies, including those conducted by the National District Attorneys Association, American Prosecutor Research Institute (APRI) for district attorney workload, and by the National Center for State Courts for judicial case-weighting studies.  Additionally, it is the definition of a "case" used in developing the National Advisory Commission public defender caseload standards.

Public defense advocates are simply asking the Nevada Supreme Court to order criminal courts to track public defender caseload by this commonly used definition.  Meanwhile, prosecutors in Nevada want a single case definition to be used by both prosecutors and defenders; one that may more accurately describe the prosecutors' situation, where the definition of a “case” would be a prosecutor’s charging instrument.  Using a prosecutor's charging instrument to define "case" will not produce uniform indigent defense data, because prosecutorial discretion allows some to charge based on event, some based on defendant, and some based on count.  This will not let the Court compare Nevada public defense caseloads against the national standards.

Despite all guidelines suggesting that the only uniform definition that makes sense for prosecutors, courts, and defenders is “by defendant, by incident,” the bottom line is that public defenders and prosecutors simply have different functions, and it may not be possible to have a single uniform definition of a case that can be applied across all components of the criminal justice system to measure workload fairly.  For example, a defendant charged with robbery in three different locations on three different days might appropriately be charged in a single indictment, but the public defender – who does not have access to law enforcement for investigation, as does the prosecutor – must treat each incident as a single case, because the best interests of the client require independent investigation of each incident.  To measure the impact of the three incidents on the workload of a public defender is different than measuring the impact of the three incidents on the workload of a prosecutor.

The answer to the dilemma of how to count cases in Nevada may come from Louisiana.  In their wisdom, the Louisiana Legislature requires that cases be counted in two ways.  Once by incident, so as to accurately reflect public defender workload; and once by charging instrument, to appropriately reflect prosecutor workload.

What is not debatable is that the State of Nevada is experiencing an indigent defense crisis that impairs the ability of the criminal courts to reach verdicts that are fair, correct, swift and final.  In October 2009, NLADA submitted a memorandum to the Nevada Supreme Court detailing Nevada’s on-going problems with case overload and offering recommendations to abate the crisis.  At this point, one may fairly question whether the debate is simply about delay.