Public defenders in southern NM sound the alarm

Chief Public Defender Bennett Baur

Copyright © 2021 Albuquerque Journal

Judges in Alamogordo have scheduled 276 felony jury trials in a four-week period through July 20, which defense attorneys say makes it difficult, if not impossible, to represent their clients effectively.

A backlog of criminal trials resulting from the COVID-19 pandemic, combined with aggressive scheduling practices, has led to a “crisis” in the 12th Judicial District Court, the Law Offices of the Public Defender contends.

“It’s not really possible to effectively prepare for that many cases,” Bennett Baur, New Mexico’s chief public defender, said in an interview Thursday.

With up to 24 felony trials scheduled on several days this month, the vast majority of those trials will be dismissed or postponed, Baur said. But attorneys don’t know which cases will come to trial in a given day, meaning they have to be prepared for all of them.

The volume of trials scheduled and the uncertainty it causes has made the court “a bit of a circus,” he said.

“When everything is kind of thrown together, you can imagine the mad scramble for everybody,” Baur said. “It sort of becomes a criminal processing system rather than a criminal justice system.”

Matthew Chavez, chief defender in the 12th Judicial District, described a chaotic scene outside the Otero County Courthouse on days when a large number of jury trials are scheduled.

Potentially hundreds of witnesses, defendants, victims, attorneys and others with an interest in the cases wait in their cars until mid-morning to learn which case will go to trial that day, Chavez said.

“Everyone just has to wait to find out what’s going to go” to trial, Chavez said. “It is literally a large number of people waiting outside the courthouse every day to find out what happens.”

Effective use of court’s time

Judge Angie Schneider, chief judge of the 12th Judicial District, called the defense attorneys’ claims a misrepresentation because many of the cases listed on the original docket are no longer on the court’s calendar by the day of trial.

Schneider provided a copy of her calendar for Friday, which listed four jury trials, not the 24 trials on a June 25 trailing docket. Most of the 24 trials listed on the earlier docket had been postponed.

Schneider said in a written response that the 12th district employs a time-honored practice used by many other judicial districts called a “trailing docket” that lists a number of jury trials at the same time.

“It has been our experience in the (12th district) that most, if not all, of the jury trials set on a trailing docket will be resolved or continued … leaving only a handful of cases on any given day of trial,” Schneider said in her statement.

Scheduling multiple trials on the same day helps guarantee an effective use of the court’s time on trial days, she said. Schneider also said she has spoken with Baur and Chavez about their concerns.

‘Not rocket science’

In addition to court scheduling practices, defense attorneys say the District Attorney’s Office files an extraordinary number of criminal cases and is reluctant to offer plea deals acceptable to defendants and their attorneys, contributing to a glut of felony trials.

Scot D. Key, district attorney for the 12th Judicial District, said prosecutors operate under the same constraints as defense attorneys and manage to cope with the large caseloads.

“We, like the (Law Offices of the Public Defender), respond by filing motions, getting ready for trial, in some cases moving for continuances,” Key said. “It’s not rocket science. Get prepared, and that goes for both sides.”

Key also rejected the suggestion that he files too many criminal charges and fails to offer acceptable plea deals.

“Communities have their own standards,” he said. “We want accountability for people who violate the laws. I’m not going to apologize for having certain plea policies that (Law Offices of the Public Defender) may not appreciate or like.”

Each judicial district operates differently based on community expectations, Key said.

“What we do in conservative south-central New Mexico may be entirely different from what is done in liberal northern New Mexico,” he said.

Baur sent a pair of letters to Schneider earlier this year raising concerns about the courts’ scheduling practices.

“The COVID pandemic has created a backlog of cases that is unprecedented,” Baur wrote in a Feb. 22 letter.

“Lawyers with 120 to 220 pending felony cases simply cannot be simultaneously prepared for dozens of jury trials over a four- or five-week period,” he wrote. “This crisis is made worse when our attorneys are required to spend long periods of time in their cars outside the courthouse on some mornings, waiting to learn if and when they will be called in for trial.”

Baur said none of the state’s 12 other judicial districts schedules large numbers of trials in the same manner as the 12th district.

Public defenders represent defendants in at least 80% of felony criminal cases filed in the 12th district and statewide, Baur said.

A 12th district court calendar provided by public defenders shows that 272 jury trials were scheduled in Schneider’s court from June 28 to July 20. Four other jury trials were scheduled in other 12th district courts during that period.

An additional 183 felony jury trials are scheduled from Aug. 2-20 in the court of 12th District Judge Steven Blankenship, according to a court calendar.

The 12th Judicial District includes Otero and Lincoln counties in south-central New Mexico.

Schneider and Blankenship preside over most of the criminal felonies in the 12th District in alternating four-week periods, Chavez said. Felony trials that are not resolved on the day they are scheduled are rolled over to future dockets, he said.

In the meantime, a person charged may remain in jail until the case comes to trial, Chavez said. Many choose to plead guilty simply because they want to resolve the case and get out of jail, he said.

“Do innocent people get convicted? Absolutely,” he said. “They can’t watch their life fall apart when their case gets bumped for another trial.”

District Attorney Key rejected the suggestion that people plead guilty to crimes they didn’t commit.

“We have no interest whatsoever in convicting innocent people,” Key said. “I don’t believe for a minute that people would plead to things they didn’t do.”

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