Near-legendary defense attorney Gary Mitchell and his ultra-efficient office staff for decades handled almost every public defender case in Lincoln County, representing thousands of poor people facing the most basic to most serious charges.
Then in 2014, at age 63, he assessed the toll the years had taken, ultimately opting to step back from daily public defense work.
“Frankly two or three of us (attorneys) had carried this system for so long, we should have never allowed it to happen.” Mitchell said recently.
Four years later, and the Lincoln County public defenders office has the highest caseload per attorney in the whole state.
There, “old school” expectations of indigent defense are folding under the weight of modern criminalization and changing community standards.
“The bottom line is for a lot of years we had a good system, because it was more rural and DAs and judges weren’t looking to make themselves big names, and we weren’t being scrutinized about how we could get problems solved,” Mitchell said. “But those days are gone. That old school stuff had its merit in its day, but now we have a different kind of society.”
In the midst of the change, Mitchell, his staff and a few other criminal defense attorneys were paid on a contract by contract base and took on more and more cases until Mitchell’s office was handling 500 to 600 cases at a time.
Now the load is handled by public defenders in a state-run office manage. Even split among three attorneys, their case loads last year were two or three times larger than national standards recommend.
The office now has five attorneys so a bit of relief is on the way, but they say there are special challenges in the county.
They say they are up against a district attorney’s office willing to take minor, non-violent charges, like possession of marijuana or a marijuana pipe, to trial.
District Attorney John Sugg says his “very aggressive” prosecution keeps crime down and he is bound to pursue charges until the Legislature tells him not to.
“I personally don’t believe it is for the DA to decide what cases they are or are not going to prosecute. That’s for the Legislature to decide. If the Legislature makes something criminal, my job is to enforce the laws, not to make the laws,” Sugg said.
Legislators over the years have criminalized more and more behavior and added increased penalties to some crimes.
Meanwhile, judges in the county have for years decried the time defendants — innocent until proven guilty — are waiting in jail pending trial. And those defendants often have just minutes with their public defender to make decisions about their fate.
“Lincoln County became a microcosm for everything wrong we were doing in the criminal justice system,” Mitchell said.
The statement isn’t a personal insult to the prosecutors there, or to the public defenders, all under age 40 and transplants from around the state who set up a state-run office after Mitchell made his exit.
“I know all these people involved. All good family
people, generous people. Everyone is intelligent, but we’re asking them to do the impossible. Just because I did it, doesn’t make it right,” Mitchell said.
Mitchell says he consistently worked 70-hour weeks.
Matthew Chávez, managing attorney of the Lincoln County public defenders office, said he and his four attorneys routinely work near that much.
“The accused in this county don’t have attorneys at arraignments. They don’t have good access to their lawyers to talk about their cases,” Chávez said.
And his office doesn’t have the staff it needs, he says.
While police provide investigations for prosecutors, the LOPD must hire its own investigators out of its own budget to dig into evidence.
“There has been no investigator in the county in 10 months. That means there is just pervasive injustice happening for people who are accused,” Chávez said.
Sugg doubts LOPD attorneys in Lincoln County and across the state are as maxed out as they say. And he says they certainly aren’t more taxed than his office, which carries a higher caseload and has the same recruiting and retention struggles in the rural county as the public defender’s office does.
Plus, Sugg says the unionized LOPD offices set a 40-hour work week for their employees.
“I’ve never in my career worked (just) a 40-hour week,” Sugg said.
Still, on a recent day in Ruidoso Magistrate Court, public defender Stephen Ochoa, freshly hired away from Sugg’s office, managed the day’s docket of defendants — about 35 of them.
As the judge, court staff and the sole prosecutor took an hour for lunch, Ochoa switched to the afternoon’s accordion file folder. Calling out to the small waiting room of defendants, he ushered each into a small meeting room doubling as a snack station for employees. He squeezed in minutes-long meetings with the people coming before the judge in the afternoon, some of them meeting him for the first time.
They asked about the charge’s impact on their immigration status. Some brought in their spouses as translators since the court didn’t have one that day.
They asked about the status of their other cases, some of them in Native American courts.
They asked if they could have their spouse with them. They couldn’t, because their spouse was listed as a victim in the case.
They asked what they should do. And Ochoa, with a few minutes to glance at just a police report, would say he can only advise on options.
As the day resumed, most of the cases were reset. Few details of the alleged crimes were discussed. And Ochoa, hungry, made it home to his family long after dark.
“We hold ourselves out as lawyers and we hold ourselves as special people, but this is involuntary servitude to protect the Constitution,” Mitchell said. “The younger generation is correct. They’re saying ‘wait a second here, I value my home life, my relationship with my spouse. I don’t want to be like Gary Mitchell, who all he’s done (in) his life is work hard.’ You kill yourself doing it.”