SANTA FE — The president of the association for the state’s prosecutors says the state’s public defenders should turn to charitable donations, grants and fundraising to help provide the resources defenders say they desperately need to adequately defend their clients.
The suggestion comes among comments 5th Judicial District Attorney Dianna Luce, based in Lea County, submitted to the Public Defender Commission as it considers implementing a protocol to guide public defenders in declining new cases amid what they claim is an unconstitutional case overload.
The Commission met in Santa Fe Monday and will meet in Ruidoso today to hear public and stakeholder comments on the proposed Interim Case Refusal Protocol.
The protocol would require Chief Public Defender Ben Baur to examine the work time logs of attorneys with three months of consistently high caseloads, based on national standards, to decide if the affected attorney is ethically able to take on new clients. If not, the chief would file a “Notice of Case Refusal” and instruct the attorney to decline to take on new cases until the caseload drops and is re-evaluated.
Luce, who also serves as president of the New Mexico District Attorneys Association, said Monday from her office in Lea County that she has already experienced this strategy in her district when in late 2016 Baur instructed attorneys to stop taking cases and to keep filing motions to be excused from taking more cases. She said that process left people sitting in jail with no Law Offices of the Public Defender attorney to represent them.
“Our position is their remedy should be they go to the Legislature and seek more funding. The other remedy is they reallocate resources within the state,” Luce said.
Public defenders and prosecutors this year got funding increased from the Legislature, but Baur says the increases weren’t enough to fund positions to get caseloads to a constitutionally acceptable level.
Public defenders from Albuquerque and Northern New Mexico districts testified before the commission Monday about their overloads they say are at levels that prevent them from sometimes even investigating cases appropriately before taking a case to trial or plea proceedings.
No prosecutors, including Luce, nor any judges attended the meeting, though Commissioner Michael Stout said they were invited, provided with information on the protocol and where to find it and comment from them, especially Luce and prosecutors, was actively sought.
Luce said she wasn’t told there was an actual draft protocol, so comments she submitted in cooperation with 12th Judicial District Attorney John Sugg on behalf of their specific districts (not the association) address the LOPD’s previous behavior in declining cases.
Their four pages of submitted comments also include an emphasis on more efficient use of resources, a more stringent indigent qualification threshold and tighter control on costs of experts.
The LOPD has, as of April 1, stopped accepting non-indigent clients, the commission heard Monday.
“Ultimately, if the Public Defender Commission and LOPD cannot figure out how to meet its statutory and constitutional obligation, the members of the PDC and the Chief Public Defender should resign and allow new commissioners and a new Chief Public Defender an opportunity to lead the LOPD,” Luce and Sugg wrote in their comments.