In September, a Northern Nevada man invoked his constitutional right to a speedy trial. He wanted his day in Washoe County court within 60 days of his arraignment.
The court set his trial for the “first available date” four months later — in late January.
In October, the man, who is facing child sexual abuse charges, lost an effort to toss out the charges against him because of the trial delay. District Judge David Hardy ruled the county’s criminal court has been “booked beyond capacity with other constitutional speedy trial cases” and that the delay was warranted, in part, because of the “unique congestion” in the calendar.
Data backs up Hardy’s assessment. The Washoe County District Court has shattered its all-time record of criminal trials this year, with 84 trials held through early November, 33 more than any year in the past decade.
But the reason for the backlog has divided the county’s legal community.
Defense lawyers interviewed for this story said they believe it’s because of a new plea bargaining and charging policy released by the Washoe County District Attorney’s office last December. The policy expects defendants to plead guilty to the most serious charge they are facing or agree to go to trial. It also requires prosecutors to receive supervisor approval if their plea offer does not reflect the most serious charge.
These lawyers say the policy disincentivizes defendants from agreeing to a plea deal, which results in more cases going to trial. In turn, they say that has led to a jam-packed court calendar that staffing levels are unable to handle. There is often an incentive for the defense and prosecution to strike a plea deal because trials expend a lot more time and resources.
“More cases are going to trial because our clients now have more limited options to resolve cases outside of trial or otherwise seek treatment or probation as an alternative to incarceration than they did a year ago,” Washoe County Public Defender Evelyn Grosenick said in a statement. Grosenick added that the public defender’s office — which provides free legal representation to defendants who cannot afford their own counsel — has “seen an unprecedented increase in jury trials, which has tremendously increased our workload.”
But District Attorney Chris Hicks, the county’s top prosecutor who helped write the policy, said in an interview the spike is related to multiple factors — a still lingering pandemic-induced court delay, a steady increase in felonies over the past several years, a rise in violent crime and defendants’ decisions to plead not guilty.
However, there have been nearly 1,500 fewer felonies so far this year than all of last year, according to data provided by the District Attorney’s office, and the level of violent crime in Washoe County has remained relatively steady over the past several years.
Hicks argued that the county’s court system is not overwhelmed. He said trial dates make up a very small proportion of judge availability and referred to data showing that the vast majority of felonies — around 2,700 this year — do not result in a trial.
“You’re getting anecdotal information from — pardon my French — disgruntled defense attorneys, and it is not my job as the district attorney to make defense attorneys happy,” Hicks said. “The goal of the standards … is fairness, consistency and objectivity in how we build our prosecutions. And we believe our charging and plea bargaining standards are in line with what our community expects of the office.”
In a statement, the Washoe County District Court said there has been a “significant” impact on honoring defendants’ right to a speedy trial because of the packed calendar. The statement also said that if current trends continue, the court will need additional resources to grant speedy trial requests and meet its judicial obligations.
Some defense lawyers added that they have noticed defendants who cannot post bail are having to spend more time in prison, though data from the Washoe County Detention Center obtained by The Nevada Independent indicates there has been no noticeable increase in a defendant’s length of stay since the policy went into effect.
In a statement sent Friday after the interview, Hicks told The Nevada Independent that there is “nothing unethical” about the county’s charging and plea bargaining processes, and that “any suggestion to the contrary requires complete disregard to controlling case law and ethical rules of professional conduct for lawyers.” But the new policy, defense lawyers said, could convince defendants to admit higher culpability than they would have in the past.
The baseline plea offer of defaulting to the most serious charge has prompted some concern from two national plea bargaining experts interviewed by The Nevada Independent. But those same experts also said that, in general, sending more cases to trial is beneficial because the plea bargaining policy can be ripe for abuse.
In May, the American Bar Association’s Plea Bargain Task Force released a report outlining recommendations to reform the plea process. The report determined that plea offers often involve coercing people to plead guilty to crimes they did not commit and result in fewer defendants letting their cases play out in a courtroom.
“We want to see more trials,” said Thea Johnson, the report’s author and a professor at Rutgers Law School. “Because we exist in a system that has almost no trials, and plea bargaining is largely the result of that.”
Orrin Johnson, a Northern Nevada defense attorney, agreed that going to trial is beneficial because it is a form of accountability for all parties. But when the system is overwhelmed, it makes the process a lot harder and can harm defendants.
“Too much of a good thing can cause the system to collapse, to be delayed. And justice delayed is often justice denied, and that’s true for victims as well as it is for defendants,” he said.
Divisions
Defense attorneys say the amount of criminal trials held — and scheduled — is evidence of the new policy’s impact.
“It just creates unnecessary delay and gridlock in the whole legal system,” said Christopher Day, a Northern Nevada defense attorney.
Hicks pushed back, arguing the surge in trials is because of lingering effects of the pandemic. In addition, many scheduled trials do not take place. Through October 2023, there were close to 300 criminal cases that were at one point scheduled for a trial that had not yet taken place, according to a Nevada Independent analysis of court data. Hicks also noted that many of the trials stem from cases that originated before the policy went into effect, so they should be considered exempt.
However, lawyers said even the possibility of trials can clog up the judicial system because if a trial is scheduled, that takes up a spot on the court’s calendar and prevents other matters from being addressed. In addition, plea negotiations are a fluid process, meaning some cases brought before the policy was adopted were still affected by the change.
“Every single trial that’s currently set right now is impacted by the policy,” said Orrin Johnson. “That policy informs the culture of the office.”
Is there an incentive to plead guilty?
Hicks emphasized how there is still an incentive for defendants to accept a plea deal, as prosecutors’ sentencing recommendations can differ depending on if someone pleads guilty or is found guilty at trial.
He referred to a recent case involving a person found with a concealed weapon, methamphetamine and heroin. Prosecutors offered the man a chance to plead guilty to the most serious charge — possession of a dangerous weapon — in exchange for dropping the drug charges. The man denied the offer and went to trial, and was found guilty of all charges.
“We were still providing him with an incredible incentive to plead guilty,” Hicks said. “Just because we asked somebody to plead to the most severe charge that they committed doesn’t mean that we’re going to be asking the court for the most severe penalty.”
Several defense lawyers said the policy as a whole disincentives plea bargaining.
Sean Neahusan, an attorney who closed his criminal defense practice earlier this year in part because of the policy, said there is often no incentive for a defendant to plead guilty to the most serious charge.
“Oftentimes that top charge is enough to basically make it worth the risk to face all the charges,” Neahusan said. “Occasionally it doesn’t, but for the most part, it’s like, ‘OK, well, if I’m gonna get stuck with that top charge, then I’m just gonna fight all of them.’”
‘No negotiations is the message’
Lawyers also said the policy strips lower-level prosecutors of discretion, a change that Hicks did not deny.
Previously in Washoe County, lower-level prosecutors — often called line or deputy prosecutors — had near complete authority over the plea offers in their cases, said two former county prosecutors who have also worked as defense lawyers.
In the past, these prosecutors would meet with defense attorneys and could quickly go through case details to determine appropriate pleas. Day, one of the defense attorneys who worked as a county prosecutor from 2016 to 2021, said he used to resolve as many as six cases in one afternoon.
The idea is that a settlement would wrap up cases quicker, which can benefit all parties, and provide defendants an opportunity to admit guilt but not to the most serious charge.
For example, if a defendant was charged with a felony and a misdemeanor in a strangulation case — a type of case where a felony can be hard to prove — prosecutors could present a deal where the defendant would plead guilty to only the misdemeanor charge, said Orrin Johnson, who also has worked as a prosecutor in Lyon County and Carson City. That could be mutually beneficial for both parties, as prosecutors would receive an admission of guilt, while the defendant would avoid a felony charge, which can bring higher penalties and pose a steeper obstacle in matters such as employment.
Sometimes, if the case was complicated and the line prosecutors needed assistance, they would go to their supervisors — called team chiefs — to determine the most appropriate plea offer.
In Clark County, the plea process operates much like it used to in Washoe County, Public Defender John Piro said.
“We do things more on a case-by-case basis,” Piro said. “What Chris Hicks’ policy does is not look at things on a case-by-case basis.”
Now the process is more complicated in Washoe County, attorneys said.
Lawyers described the new system as much more drawn out because deputy prosecutors must routinely receive approval from their chiefs if they want to offer a plea deal that does not reflect the most serious charge.
“It’s a fight to get them to agree to what used to be a pretty reasonable offer,” Day said. “Cases take longer to negotiate because if there’s any hope to get an offer, you really want to wait till their supervisor signs off on it.”
Theresa Ristenpart, a Reno-based defense attorney, said that under the new policy “no negotiations is the message.”
Neahusan, one of the Northern Nevada lawyers who also used to work as a county prosecutor, said the policy shift shows a lack of trust in lower-level prosecutors.
“I have a problem with that,” Neahusan said. “If there’s things that you want to push as an office, you push them as an office. But you don’t dictate what everybody’s going to do.”
Piro, the Clark County public defender, said the lack of discretion is a “pretty garbage way to run an office.”
Hicks said while prosecutors may have less discretion than before, plea negotiations are still very common. The office had considered the changes since before the pandemic, and Hicks said they were made to apply consistency in criminal charges and plea offers.
He said he does not regret the policy.
“I’ve heard no complaints about the plea bargaining and charging standards,” Hicks said.
Editor’s Note: Orrin Johnson is a former columnist for The Nevada Independent.
Kristyn Leonard contributed a graphic to this story.
