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Roberto Miranda was desperately trying to get noticed. Having spent 10 years on death row in Nevada for murder, and seeing his appeal at the Nevada Supreme Court fail, Miranda was frantically sending letters in hopes of getting new legal representation. “He was trying to get someone to pay attention to him, said defense attorney Laura Fitzsimmons, of the Laura Fitzsimmons firm in Las Vegas. “No one was paying attention to him.” Fitzsimmons had become familiar with Miranda’s case, and in 1992 asked the state public defender’s office if she could represent him. She won his release in 1996. But that’s not the end of Miranda’s story. He recently agreed to a $5 million settlement in a civil rights claim against the Public Defender’s Office of Clark County, Nev., which represented him before Fitzsimmons. The settlement stems from Miranda’s wrongful 1982 murder conviction and death sentence. The suit alleged that the office’s procedures-such as giving their clients polygraph tests to determine how much investigation the defenders would do for the case-infringed on Miranda’s Sixth Amendment rights. In 1992, Fitzsimmons filed an appeal for ineffective assistance and challenged the office’s practices of using the lie detector tests. Fitzsimmons also argued that Miranda’s attorney, who was months out of law school and had never previously tried a murder case, should not have been assigned to Miranda. “It’s an excuse to be lazy,” she said. “In a private practice if they treated their clients this way, they would starve to death.” 40 witnesses ignored The victim in Miranda’s case was found with a stab wound in Miranda’s home. Prosecutors supplied a witness who, months after the incident, alleged Miranda was the murderer. Miranda had supplied his trial attorney with the names of 40 witnesses, but none was subpoenaed for trial. Fitzsimmons tracked down most of these witnesses from across the country, who testified on Miranda’s behalf. In 1996, District Judge Norman Robison of Minden, Nev., awarded Miranda a new trial. Miranda was freed after the state declined to reprosecute the case. Following his release from prison, Miranda turned to Skip Jacobson of Jackson, Wyo.’s Spence, Moriarity & Schuster, who filed a lawsuit through the 9th U.S. Circuit Court of Appeals. Jacobson claimed the counties have a responsibility to fund public defender’s offices adequately and train the lawyers they assign to capital cases. Jacobson named Miranda’s attorney as well as the county’s public defender and two police officers in the civil rights lawsuit. The public defenders have immunity against civil litigation, but the suit claimed that since the lawyer’s ineffectiveness stemmed from following the office’s procedures, he was an extension of those procedures. In 2003, the 9th Circuit ruled that the defense lawyers’ allegations against the procedure of the public defender’s office provided a sufficient claim of “deliberate indifference to constitutional rights” by not properly training lawyers for capital cases. Miranda v. Clark County, 319 F.3d 465. However, the court rejected the claim against Miranda’s public defender, citing the 1981 Supreme Court ruling, Polk County v. Dodson, 454 U.S. 312, 70 L. Ed. 2d 509, 102 S. Ct. 445. The court ruled that even though the public defender was paid by a state agency, as an attorney he has personal responsibilities to his client, and therefore cannot be viewed as a state actor. Polk left open the option of suing over the procedures used by the Clark County Public Defender’s Office. Jacobson said he expected the case to go to trial within a year, but Miranda requested the settlement. Clark County Public Defender Phil Kohn said the office is working to improve its procedures and provide proper representation for their clients. Each of his attorneys tries roughly 350 cases a year, which, Kohn acknowledges, is still too many, but he said there have been changes. “A case like Miranda will never happen again,” he said. Kohn said that unlike in the 1980s, when attorneys were given a variety of cases, the office now breaks up the attorneys into teams, of which the top team handles the murder cases. Kohn also said the office conducts a more effective training program and provides supervisors for the attorneys. Landau’s e-mail is jlandau@nlj.com.

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