ALBUQUERQUE, N.M. — A security guard at the mental health treatment center swore it was resident Renita Padilla who’d punched a tourist and stole her ring in the parking lot across the street. Santa Fe police checked security footage, and it showed Padilla out of her room at the time of the attack, returning shortly after.
But the victim said it was a tall, heavy man who’d attacked her. Padilla is 5 foot 2 and 200 pounds. And the victim picked a different woman out of a photo lineup after she was told her attacker was female.
Still, police charged Padilla with robbery, meaning she faced three years in prison.
The charge got her kicked out of her treatment program and back onto the streets. She spent months in jail. (Even years later, the charge prevents her from accessing shelters and possibly other government programs that run background checks.)
The thing is, Padilla didn’t do it.
Turns out the time stamp on the video was off and Padilla was in her room at the time of the robbery — a detail prosecutors and police missed.
How do we know?
Her taxpayer-funded public defender put in about 20 hours investigating the case, spending time away from his family on a weekend looking through evidence that eventually convinced prosecutors to dismiss the case.
That public defender was Bennett Baur, now the appointed head of the state’s Law Office of the Public Defender.
He and indigent defense advocates say his office and others across the nation are so underfunded and overworked that spending that much time on cases like Padilla’s is rare if not impossible.
Attorneys have so many cases they sometimes spend only minutes with new clients before advising them about offered plea deals or options. And forget about digging into video evidence in each case.
“If I had not spent the time on a Saturday, she probably would have been convicted. This is a person I was able to save, but I don’t know how many I haven’t,” Baur said. “At some point, if you only have the capacity to do 30 minutes on each case, you don’t know what you missed.”
But not everyone in New Mexico agrees there is a crisis in public defense.
Twelfth District Attorney John Sugg, over Lincoln and Otero counties, says public defenders in the region — and across the state — are fabricating the crisis to get more funding. Without accountability to the public via an elected leader, the office is free to spend money inefficiently, Sugg says.
“The public defender system has never been better funded than it currently is. They’ve never had the resources in Lincoln County that they do now,” Sugg said from his office in Carrizozo.
Are they underfunded? Sure, but no more than “the entire judicial system is underfunded,” Sugg said.
Indeed, the whole system is hovering on “life support” and in urgent need of more funding, state Supreme Court Justice Charles Daniels said as chief last year.
Judges are juggling massive caseloads, and courthouses are cutting hours and special programs. For a while, jurors were going unpaid.
Prosecutors slog through backlogs of cases as they carry the flag against real or perceived crime waves.
Cities are struggling to recruit and retain police. Crime in Albuquerque and in other cities in the state has spiked, and where it didn’t, fear of it remains high.
And in 2016 the Law Office of the Public Defender made good on a decade of warnings that it would have to stop taking cases to meet constitutional requirements for effective counsel. Baur, as chief, was found in contempt of court for sanctioning the action, but some of his attorneys continue to file motions to be excused from cases.
As has happened in other states, Baur and opposing prosecutors took the issue to the state Supreme Court.
The American Civil Liberties Union of New Mexico says it is closely monitoring what is unfolding here.
New Mexico’s justices in late 2017 basically told Baur and prosecutors to cross their fingers for more funding this year, to try a bit harder to cooperate, and to come back with more data about cases and workloads should the first two suggestions not resolve the issue.
Fingers are crossed for funding.
State prosecutors all together and the LOPD are seeking a 13 percent increase to their budgets.
In fiscal year 2017, the LOPD operated on a budget of $48.8 million; the state’s 13 prosecutor offices operated on $66 million.
The LOPD seeks $55 million while prosecutors want $75 million for next fiscal year, though each prosecutor requests individual amounts. The Legislative Finance Committee has recommended about $50.3 million for the LOPD, and about $69.8 million for state prosecutors offices.
Gov. Susana Martinez has pledged a special infusion, maybe $5 million, to the Bernalillo County DA’s Office to help it battle a spike in crime. Prosecutor Raúl Torrez has requested a 33 percent increase from his current budget of roughly $18 million. The LFC says $23.4 million for Torrez should do.
Baur warns that increases in funding for prosecutors must be met with increases in funding for the LOPD.
“The cost of defense is part of the cost of prosecution,” he said. “My mantra is give us more money or give us fewer cases.”
The LOPD currently employs about 200 attorneys and contracts with another 150 who handle about 33 percent of the indigent caseload in the state.
Over the last four years, the LOPD has received a 16 percent budget increase while the state’s general fund grew at only about 3 percent that same period, according to the Legislative Finance Committee.
But at the same time the LOPD’s portion of the total annual caseload in the state has grown. While the number of cases referred to and filed by prosecutors across the state has stayed steady since 2013 and total cases filed in courts have dropped, the portion of those cases taken by the LOPD increased 9 percent, according to the LFC.
Some say LOPD is bearing the brunt of an increase in poverty in the state, while Sugg and others critical of the LOPD say public defenders are taking on too many clients who could actually pay for their own private attorney.
And critics of LOPD say the office takes on cases where prosecutors aren’t even present, such as some misdemeanor cases in which police officers — not prosecutors — provide evidence to a court.
Baur, though, says the law as it is interpreted now requires and does not give public defenders a choice about which cases they take on. If jail time is a possible sanction and the defendant is poor enough, a public defender must take it.
The financial threshold for clients is 150 percent of the federal poverty level. For example, a family of four making $36,900 or less meets that threshold.
With overloaded public defenders, the chance for mistakes — or crucial details missed — increases.
In mid-2016, only two of the state’s 13 judicial districts had public defender caseloads considered manageable by National Advisory Commission on Criminal Justice Standards and Goals standards (a controversial and, critics argue, outdated measure on its own). The other 11 districts carried loads of 165 percent to 354 percent of the standard.
In the most overloaded spots — Lincoln and Lea counties — attorneys had nearly three times as many cases as they should have.
The standards say attorneys per year should have no more than 150 felony cases, which take more time and attention than the advised annual load of 400 misdemeanor cases. Many examining the criminal justice system agree that caseload snapshots like this don’t accurately represent the workload defense attorneys and prosecutors carry, especially since the NAC standards were developed somewhat arbitrarily in 1973.
A better measure, most agree, is a workload study.
The LOPD has been selected for such a study, the sixth in the nation by the American Bar Association and affiliated researchers. It is contingent on approval of $50,000 from the Legislature and governor this year.
“The DA, they’ll say ‘we have to prosecute all these cases. The public defender only has 80 percent.’ They’ll tell you they work harder or they have more to do, and we’ll tell you we have more to do,” Baur said. But with the study, “you don’t have to even listen to that” back and forth.
“The workload study compares what we’re doing with what we should be doing, not to what they’re doing. It is how much time have you spent on cases, on a particular kind of case, and then a panel of experts to say this is how much time you should be spending,” Baur said.
He said the study is “absolutely going to show” staff and attorneys are overworked.
“There is no way we have the resources to do the job we need,” he said.
And recalling Padilla, “if we make a mistake, someone goes to prison.”