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Official: Public defender financial situation dismal

The financial picture facing the Law Office of the Public Defender is not a pretty one, any way you look at it, says the head of the commission overseeing it.

A supplemental appropriation by the Legislature for $1.3 million was vetoed by the governor earlier this month. In her veto message, Gov. Susana Martinez said she was “disappointed by the rapid rate of overspending at the Public Defender Department” and said many people were left to “wonder what the actual size is of the projected shortfall in the current year.”

Public Defender Commission Chair Michael Stout said the commission asked for a 116 percent increase, in part to cover costs for support staff and additional attorneys but also to pay contract lawyers, hired when there’s a conflict in the defender office, an hourly rate. The Public Defender got an 8 percent increase instead.

An $85 an hour rate approved by the commission is still less than the market rate – civil contract attorneys defending the state get $160 an hour – but language in the final budget bill barred any payment by the hour to contract counsel.

The New Mexico Public Defender Commission, created by a constitutional amendment in 2012 that took defenders out of the executive branch, approved performance standards last May to ensure that staff attorneys and contract lawyers meet state and national requirements for representation.

Part of that included upping the amount paid to contractors, who have been receiving payments on a per-case basis – from $700 for a child abuse case and $650 for second-degree felonies.

“We got an increase for the fiscal year 2016 budget, but the appropriation we need to keep trains running was vetoed,” Stout said.

The bill originally allowed hourly rates in Lincoln County, where two judges have issued orders and made findings regarding problems with indigent defense, and where the chief judge ordered the hourly payment.

“We’re litigating that,” Stout said. “We’re going to fight it.” The predicament about hourly rates, as well as other budget issues, will be front and center at a defender commission meeting at 10 a.m. Friday at the New Mexico Educators Credit Union, 4100 Pan American Freeway NE.

Twelfth Judicial District Judges James Waylon Counts of Alamogordo and Chief Judge Karen Parsons, of Lincoln County, both have noted in detailed findings that significant problems exist in getting adequate representation for defendants.

Counts said in an order last September that despite the state’s obligation to pay for the costs of indigent representation, it has not.

And Parsons, citing a “crisis of Constitutional magnitude” in Lincoln County, approved an $85 an hour rate for contract counsel.

Criminal defense attorney and contract public defender Gary Mitchell of Ruidoso, who has handled much of the indigent defense for Lincoln County, has said in pleadings that he’s been subsidizing the public defender for three decades.

Mitchell filed a motion last week in a Lincoln County case asking for charges against a client to be dismissed “due to the State of New Mexico’s failure to … appropriate sufficient funds to provide counsel for indigent defendants and (for) deliberate and vindictive interference with the fundamental right to counsel.”

Under a U.S. Supreme Court case, Gideon v Wainwright, accused persons who can’t afford an attorney must have one provided by the state.

Stout said the commission meeting will tackle two basic questions: “Where do we go for next year’s budget and where do we go now? … The policy question is what do we do when effective assistance can’t be met?”