WILLIS T. BROWN, Petitioner,
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE WILLIAM D. KEPHART, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest.
petition for a writ of mandamus challenging the district
court's denial of a motion for expert services at public
expense. Petition granted in part.
Office of Gary A. Modafferi and Gary A. Modafferi, Las Vegas,
Paul Laxalt, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Charles Thoman, Deputy
District Attorney, Clark County, for Real Party in Interest.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
Widdis v. Second Judicial District Court, 114 Nev.
1224, 968 P.2d 1165 (1998), this court held that,
notwithstanding the ability to retain counsel, a defendant is
entitled to reasonable and necessary defense services at
public expense if the defendant demonstrates both indigency
and a need for the requested services. We take this
opportunity to clarify the definition of an indigent person
as well as the demonstration of need sufficient for a request
for defense services. Additionally, we make clear that
Widdis does not require an indigent defendant to
request a sum certain before a motion for defense services at
public expense can be considered or granted. Based on the
district court's application of Widdis, we grant
the petition in part.
AND PROCEDURAL HISTORY
Willis Brown faces multiple counts of lewdness with a child.
Before the preliminary hearing, Brown moved for expert
services at public expense pursuant to Widdis v. Second
Judicial District Court, 114 Nev. 1224, 968 P.2d 1165
(1998), submitting an application containing financial
information along with his motion. The justice court found
Brown indigent and granted the motion, but limited the funds
for the services to a stated amount.
Brown was bound over to the district court, he again moved
for expert services at public expense, submitting an updated
application that showed he had gained employment and reduced
his monthly liabilities since his previous motion. The motion
acknowledged that Brown's extended family had paid for
his legal fees but asked the district court to declare him
indigent and permit him to retain an investigator and expert
(Dr. Mark Chambers) at State expense to assist his defense.
Brown claimed he needed to retain Dr. Chambers "to fully
understand and convey to both the court and/or the jury the
influences upon a child's accusation in a sexual
prosecution" and averred that Dr. Chambers would
"testify to psychological issues involving child
testimony, parental influence on that testimony, and
children's motivation regarding false allegations."
Additionally, Brown claimed an investigator was necessary to
serve subpoenas on and obtain statements from witnesses and
to generally investigate the circumstances of the
hearing on the motion, the district court stated its belief
that Brown was not indigent:
I don't reach that based on-I mean he's employed.
He-it appears that he has to probably adjust his expenses.
But for the State to be paying for his investigator fees
under these circumstances, I don't think Widdis
truly could-is saying that that's a mandatory
requirement. And so I'm just making a finding based on
his affidavit that he's not indigent in order to fit
district court opined that the previous indigency
determination might have been appropriate based on the
initial application but concluded that Brown no longer
qualified as an indigent based on the updated information.
this court ordered an answer to Brown's petition, the
district court held another hearing in which it expounded
upon its reasons for denying Brown's motion. The district
court referenced the two requirements in Widdis,
indigency and necessity of the services, and gleaned a third
requirement from the Widdis dissent, a request for a
sum certain. The district court referenced Brown's
exhaustion of family resources to retain counsel and deduced
from that fact that Brown had resources. Additionally, the
district court noted that Brown's debt-to-income ratio
had appreciably decreased between his submissions of the two
applications. The district court went on to say that Brown
"failed to show how an investigator needed for assisting
his counsel . . . wouldn't have been included within his
legal fees, or if it was even discussed when securing
counsel." The district court concluded that its findings
were that Brown was not indigent and had not met a showing of
need, specifically stating it "was a cursory attempt to
show need." Counsel argued that, while Brown was
currently employed, there was a significant decrease in
income between Brown's previous job and current job,
which was a minimum-wage-plus-tips position. The district
But it's not a question of indigency then. Just because
he's paying less. And the thing is too I made the
statement in the previous argument is that he may need to
adjust his expenses. At the time that I received an
application his debts were way lower than the initial debt.
And-but he hadn't changed his so to speak lifestyle. He
was still living in a pretty expensive place where he could
change that. You know, it doesn't-because he's living
at, you ...