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Douglas County Public Defender’s OfficeMarks 100 Years of Service to the Poor 7/8/15  07/08/15 10:17:11 AM Printer Friendly VersionPrinter Friendly Version

One-hundred years ago today, Nebraska Gov. John H. Morehead appointed Richard Scott Horton, left, the first public defender of Douglas County. Current Public Defender Thomas C. Riley, right, has served the citizens of Douglas County since 1995.
Second in the Nation
Douglas County Public Defender’s Office
Marks 100 Years of Service to the Poor

By Lorraine Boyd
The Daily Record

The Douglas County Public Defender’s Office is celebrating its 100th anniversary this July, and the County Board is taking note.
Who knew that Douglas  County, Neb., was a groundbreaker in the field of law?
Back in 1791, when the Sixth Amendment of the U.S. Constitution’s Bill of Rights was ratified, our forefathers had the foresight to guarantee “In all criminal  prosecutions,  the  accused shall enjoy the right [at all significant stages of a criminal proceeding] … to have the Assistance of Counsel for his defense.”
The U.S. Supreme Court has consistently held that the Sixth Amendment right to counsel attaches to any court case (adult or juvenile, civil or criminal) in which an individual faces potential time in jail. How to implement that right has not always been so clear.
At first, the Sixth Amendment was applied only to the federal government and to serious felonies; the states were left on their own to decide whether and how to apply the Sixth Amendment guarantees. Most jurisdictions relied either on the volunteer pro bono efforts of lawyers or appointed attorneys to represent the accused, whether or not the attorney was a criminal defense lawyer.
This not only taxed private attorneys’ ability to serve their other clients, but often called upon them to operate out of their area of expertise. It took 122 years for a jurisdiction – Los Angeles County, Calif. – to establish the nation’s first public defender’s “agency” in 1913 and appoint a public defender in 1914.
Public Defense Pioneer
Nebraska’s Douglas County was right behind them in 1913, the second county in the country to create a public defender’s office by statute. On July 8, 1915, Nebraska Gov. John H. Morehead appointed Richard Scott Horton the first public defender of Douglas County. Horton was subsequently elected by the voters to a four-year term of office in 1916.
Horton served until 1921 when John N. Baldwin became the public defender. Robert R. Troyer followed him in 1929. Joseph M. Lovely served from 1933 until 1960, when William E. Lovely took office.
In 1961, A.Q. (Adolph) Wolf was sworn in upon William Lovely’s death. (His office nickname was “A-Quittal” Wolf, Tom Riley said.)
Wolf was succeeded by Frank Morrison in 1971, followed by Tom Kenney in 1977. Thomas C. Riley assumed the position in 1995, was elected to the office in 1996 and, in January 1997, was officially sworn in as public defender, the office he still holds.

Douglas County Commissioner Jim Cavanaugh (left) and the Hon. Joseph Bataillon (right) congratulate Douglas County Public Defender Tom Riley on the occasion of his office’s 100th anniversary. Riley has served in the office for nearly half of its history.

That’s only nine public defenders in a century, and some of the turnover was due to the deaths of the office-holders. The office must have been doing something right, as voters have consistently re-elected their public defenders throughout the years.
A trickle of cities and counties followed the examples of Los Angeles and Douglas counties, but it was not until 1963 that the Supreme Court decision in Gideon v. Wainwright forced the criminal justice system to address the issue nationally.
While the Sixth Amendment gives defendants the right to counsel in federal prosecutions, the right was not applied to state prosecutions for felony offenses until Gideon v. Wainwright in 1963. An associated right gives the poor the right to have counsel appointed and paid for by the government. The federal criminal justice system and all states now have procedures for appointing counsel for indigent defendants.
Three primary ways of providing indigent defense services are used by federal and state courts: public defenders, assigned counsel, and/or contract attorneys, either alone or in combination.
In some cases, judges still rely on appointing attorneys to defend the indigent, however, larger venues find it more cost effective and efficient to establish a public defender’s office, as Douglas County did decades before Gideon v. Wainwright.
“Just think: Douglas County acted 50 years before Gideon to ensure counsel for the poor,” Riley said, commenting on Douglas County’s early public defender’s office.
“We were a very progressive state then. Even though we are very conservative [as a state], we also want to help the poor.”
County Board Proclamation
Why not Nebraska? The state has a history of civil innovation.
“Nebraska had William Jen-nings Bryan, the Unicameral and public power – all cutting edge,” said Jim Cavanaugh, a former public defender and current Douglas County Commissioner.
Both Jim Cavanaugh and his law partner, nephew Patrick Cavanaugh, are former trial attorneys with the Douglas County Public Defender’s Office. In fact, the Cavanaughs have a family tradition of public defenders, including Jim’s wife Leslie, and his nephews, Patrick and John Jr., among others.
Cavanaugh presented Riley with a proclamation from the Douglas County Board at their meeting June 30. Many members – past and present – of the Public Defender’s Office were present.
“This occasion is a tribute to our forward-looking forefathers,” he said. “It’s a legacy of preserving the civil liberties of the less fortunate.
“The office has served us well for 100 years. Some of the best legal minds in [Nebraska’s] history have served in it.”
Joseph F. Bataillon, now a Senior United States District Judge for Nebraska, and a former Douglas County public defender, noted that, “Early on, Douglas County realized it was important to provide defensive care for the indigent. Generally, they are not even wage earners and are well below the poverty line. But many others who are wage earners cannot afford a lawyer either.
“Most major cities subsidize a defense bar. Douglas County found that it was more cost effective to have a public defender, and it provides a level of expertise that appointed lawyers wouldn’t necessarily have. The courts run more smoothly because of it.”
If a court-appointed lawyer has no experience in criminal law, that can be a disadvantage, Bataillon explained. And unlike some in private practice, public defenders have a familiarity with the judges and know how their courts are run, he said.
“This makes the system much more efficient and it gives defendants as good a defense as [a lawyer in] private practice would.”
Bataillon noted, “We can’t expect the private criminal defense bar to shoulder the burden. … And having a good bar sets the standards high for public defenders.”
‘It’s All About the Poor’
Tom Riley has been a Douglas County public defender for 40 years. He says it’s the only job he ever wanted.
“I’ll leave feet first,” he said. “I will continue representing [our clients] as long as the voters will have me. I thank them for giving me the opportunity to do this job. I do everything I can for our clients.
“The lawyers on his staff are very talented and experienced and, most of all, very committed to giving their best for all their clients.”
“It’s all about helping poor people who can’t represent themselves or afford a lawyer to represent them,” Riley said.
“Great people work for us [in the Public Defender’s office],” he said. “Everyone who works here shares that philosophy; if you don’t, you don’t get to work for us. Our people are awesome.
“I am not political. I don’t care whether those I hire are Democrats or Republicans. As long as they believe in our goals, that’s all they need.
“The whole thing is about representing poor people. … I have won trials and when my clients give me a heartfelt ‘thank you,’ that’s my reward. I will go to the wall for them and I’m proud of that.”
If you sense a theme in his remarks, it’s because that’s Riley’s mantra – one that is shared by many others.
‘Some of the Best Legal Minds’
Among those who started with Riley as young, green lawyers in the Public Defender’s Office were the Hon. Joseph Bataillon and Ronald E. Frank, now of Sodoro, Daly & Sodoro, P.C.
By the time the trio joined the office in 1974-75, it had “12 or 13 lawyers,” Riley said. Now there are nearly 50, including the offspring of some high profile Nebraska lawyers, such as John Cavanaugh Jr., John Ashford, Patrick Dunn and Timothy Shanahan.
While the size of the office has grown significantly, so have the duties. Not only were juvenile court cases and County Board of Mental Health proceedings added to the mix, but the number of county and district judges has grown significantly, allowing for many more cases.
Bataillon began his legal career in 1974 as a Douglas County deputy public defender.
He said he got experience in everything from misdemeanors to juvenile court and district trials. “I was there from 1974 to 1980,” after serving as a law clerk there. “It was, and is, a great training ground.”
Ron Frank, the third member of the trio, was there from 1975 until 1981, when he joined the law firm of Sodoro, Daly & Sodoro, P.C.), as did Bataillon.
“Joe [Bataillon], Tom [Riley] and I are kind of classmates. We were all hired by the Public Defender’s Office within six months of each other,” Frank said.
“It was an interesting experience doing criminal defense work. I went in feet-first early in my career. The best part was the one-on-one with clients.
“That experience cannot be replaced. It was like going to boot camp. You learned to react and respond quickly. Sometimes the only thing you could do for them was protect their rights,” Frank said.
“I was in misdemeanors for six months, then moved on to felony cases. While there, I was one of five on the major felony trial staff, and chaired numerous jury trials, including capital offense cases.”
“The nature of the trials has become more intense, more high-profile since the spring of 1981. Gangs were not a factor then. We’ve had 23 [25 at time of this writing] murders already this year – the system would have shut down without the Public Defender’s Office.”
Frank expressed admiration for his former co-worker. “Riley still tries cases, something Kenney stopped doing. And he does a very good job lobbying the Douglas County Board for the funds to pay his lawyers commensurate with the work.”
“I try to work with the county on budgeting and staffing. I think we work well together,” Riley acknowledged. “The great thing is, the courts don’t control me. The county gives me the funds and I decide how to spend them. My goal is always to do the best we can for those we serve.”
Besides Bataillon, other Douglas County judges, both district and county, who were once assistant public defenders include Susan Bazis, Timothy P. Burns, Marcena Hendrix, Marcela Keim and Jeff Marcuzzo. Many others have gone on to illustrious careers. Jim Cavanaugh said at the board meeting, “As the saying goes, everything I learned about the law, I learned in the Public Defender’s Office.”
Leslie Cavanaugh, a 17-year veteran of the Public Defender’s Office, articulated her passion for the job.
“I went to work at the Public Defender’s in 1998, because it offered the opportunity to argue for Constitutional protections in court on behalf of poor people.
“I have stayed for 17 years for two main reasons: One, Tom Riley, who is a brilliant lawyer, a tireless advocate and a great teacher. Two, because I know of no other legal career that demands deep compassion from us daily,” she said.
“Our clients are not only poor, they suffer frequently from mental illness, addiction or disability. We stand with them and ask the justice system to honor their rights, remember their humanity and to plead for understanding and mercy. Our clients are often overlooked or despised by society and too often presumed guilty.
“We ask you to not turn away, but turn back, look harder and question your presumptions. I stay, because I cannot look away,” she said.
Douglas County was receiving praise as early as 1931 for their groundbreaking office.
Charles Mishkin, who was chairman of the sub-committee on Defense of Prisoners for the Chicago Bar Association, wrote in the Fall 1931 issue of the Journal of Criminal law and Criminology about “The Public Defender” in Nebraska:
The office was created by statute in 1913 which was amended several times. …
Among the advantages pointed out in connection with the office of public defender in Omaha are that it comes nearer to giving the accused a true equality before the law, also that even if the defendant files a plea of guilty, an unjust sentence is prevented by the public defender acquainting the court with the extenuating circumstances, and in practice the prosecuting attorney’s office and the public defender’s office do not work at cross purposes as opponents of the plan sometimes suggest they might.
Concluding from the information gathered by the Committee, the office of public defender in Nebraska is considered wholly successful and is held in high repute by all elements of the community.
In the year 2015, by all accounts, the Public Defender’s Office is still held in “high repute by all elements of the community.”
Happy Anniversary! For the sake of the citizens of Douglas County, may the next century be as successful as your last.

Douglas County Public Defender Tom Riley (center) is congratulated by Douglas County Commissioners Mike Boyle and Jim Cavanaugh on his left and the Hon, Joseph Bataillon and Douglas County Board Vice Chair Chris Rodgers on his right.

The Hon. Joseph Bataillon (left) joins the audience in applauding members of the Douglas County Public Defender’s Office.
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