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Public defense system is broken, state judge rules

FOR THE RECORD: This story misstated the hourly amount the Public Defender Commission is seeking to pay in its 2016 budget request. The commission recommended paying contract attorneys $85 an hour.

Copyright © 2014 Albuquerque Journal

A state judge has found that the system is broken when it comes to funding the defense of those who can’t afford their own lawyers.

Alamogordo District Judge James Waylon Counts made the ruling in a motion brought by well-known criminal defense attorney Gary Mitchell of Ruidoso, who as a contract attorney has become the de facto public defender in Lincoln County. Mitchell submitted documents in the case to show he has been personally subsidizing the defense of clients under a public defender contract.

Counts said such an inequity is likely to undermine the meaning of “effective assistance of counsel.”

“Defendant has shown that the current system of payments to contract public defenders may create a situation wherein criminal defendants may receive inadequate counsel,” Counts’ order said.

His 26-page ruling last week came after a hearing with testimony from Mitchell, contract defense counsel Roger Bargas, public defender contracts administrator Lee Hood and a review of written findings proposed by the defense and the prosecution. The issue arose with a pair of embezzlement cases against a single defendant, but Mitchell submitted virtually identical motions in dozens of other contract cases.

Contractors are now paid a flat fee. An attorney representing a defendant who faces up to 18 years of mandatory prison time in a sex abuse case, for instance, is paid $700, even if the first-degree felony takes two or more years to resolve. The contract schedule allows for payment of $595 for a third-degree felony and $250 for a juvenile case.

A budget proposal would make major changes in the system, but funding is ultimately up to the Legislature.

While making extensive findings about payment of contract defense lawyers, Counts denied Mitchell’s specific request – a stay of the prosecution and an order requiring the state to pay all expenses of representation, including an hourly rate.

Contract civil attorneys defending the state are paid $160 an hour, with no cap, the judge noted.

John Sugg, deputy district attorney in the 12th Judicial District, said in his proposed findings that evidence in the case showed the New Mexico Public Defender Department had not sought to collect money from the particular defendant.

“In other words,” Sugg wrote, “although the resources of the defendant could pay the (Public Defender), they do not seek to be compensated, making the schedule of indigency and compensation rates rather meaningless.”

Sugg also said the Lincoln County contract provides for additional compensation in extraordinary cases for which Mitchell could apply and that ultimately he could simply withdraw as counsel. As part of public service in any sector, Sugg said, counsel “cannot expect that the state of New Mexico will provide compensation at the same rates that are paid in the private market.”

The New Mexico Public Defender Commission, meanwhile, has submitted a proposed budget that includes an hourly rate for contract attorneys and sets performance standards for representation. The commission was created in August 2013 after a constitutional amendment removed oversight of the public defender from the executive branch.

Commission chair Michael Stout of Las Cruces, who also testified before Counts, said the commission “applauds Judge Counts for placing in writing what those in the system have long known – the contract counsel defense system is severely flawed. ”

Roughly a third of indigent defense in the state is performed by contract counsel. Counsel is appointed in places where no public defender is available or where there is more than one defendant in a case, presenting a conflict of interest.

“The point I want to make clear is that this is about clients. When clients are hurt, you don’t have a good system,” Stout said. “There are a lot of talented, committed people in the public defender system, but they cannot possibly put their finger in the dike to plug the holes. It can’t be done.”

He called the flat fee system “ludicrous” and “irresponsible.”

The defender commission voted unanimously to adopt the new payment schedule with the 2016 budget cycle, as well as requesting an additional 33 attorneys for the Public Defender department.

For 2016, the commission is seeking $96.4 million, according to the Sept. 2 submission to the State Budget Division and the Legislative Finance Committee, paying an hourly rate from $90 to $160 depending upon years of experience. Federal court currently pays appointed counsel $125 an hour and pays expenses, which the flat fee model does not.