SANTA FE – In what may be an unprecedented ruling, a state district judge here decided Monday that he will appoint a special master in a criminal case to ensure that the defendant gets a constitutionally adequate defense.
Judge T. Glenn Ellington made the ruling in the case of William “Kal” Kalinowski, a former luxury home developer charged in 2013 with 10 felony counts of embezzlement or fraud for allegedly bilking investors, contractors and people he was supposed to be building homes for in the upscale Las Campanas subdivision near Santa Fe out of millions of dollars.
After a 3½-hour hearing, Ellington said none of three lawyers from the Public Defender Department assigned to represent Kalinowski over the past couple of years had the experience or background to handle such a complicated white-collar fraud case. Kalinowski’s trial is expected to have more than 50 witnesses and is scheduled for three weeks.
Ellington said he didn’t know “if there was anyone within the department” with the necessary expertise, but that the public defenders for Kalinowski didn’t meet Ellington’s prior order that “appropriate” lawyers represent Kalinowski.
“Mr. Kalinowski, you’re not guaranteed a perfect defense under the Constitution – you’re guaranteed a constitutionally adequate defense,” Ellington told the defense. “To this point in time, you have not received that in preparation of this case.”
“The court finds that the department is wholly unprepared to deal with this kind of case internally and it must take specialized action whenever a case like this presents itself,” Ellington said. He ordered the public defender’s office to provide “whatever resources are necessary” to provide Kalinowski with effective legal assistance.
Helen Bennett, an Albuquerque attorney appointed to represent Kalinowski at Monday’s hearing who argued for a special master to oversee the department going forward in the case, said she has been unable to find another instance in the country in which a judge appointed a special master in a criminal case.
Ellington’s decision came after an unusual hearing that pitted lawyers from the Public Defender Department against each other, giving conflicting accounts of what had been said in conversations about mounting a defense for Kalinowski.
At issue was a motion filed in October by Damian Horne, a longtime public defender who’s done frequent tours of the Middle East as a member of the National Guard Special Services. He said the public defender’s office in Santa Fe had refused to provide enough funding to provide an adequate defense for Kalinowski, and he criticized the lack of funding and resources for the public defender system in New Mexico.
On the stand Monday, Horne maintained that his supervisor Ben Baur had put a $1,000 limit on what Horne could spend for an investigator to assist in Kalinowski’s defense. Baur said he never put a cap on the cost of an investigator. Baur said Horne had mentioned possibly needing $150,000 for the case but never filed a formal request for money.
Horne said that in his 30 years as a lawyer he’d never handled a white-collar crime case and was “getting pushed to not spend too much.” He said he filed his motion about inadequate representation for Kalinowski in the interest of his client and the U.S. Constitution and under the ethics standards set in rules of professional conduct for lawyers.
Jorge Alvarado, New Mexico’s chief public defender, said he met with Horne after Horne had complained in a staff email about spending department money on a retreat. That led to conversation about the Kalinowski case and Horne said he needed $350,000, Alvarado said. Alvarado suggested trying to get money for the case from the Legislature through a supplemental appropriation, Alvarado said.
Ellington found that Horne in fact tried to raise “the issues and problems” with the case with his superiors and sought direction in finding adequate resources “to allow Mr. Kalinowski his day in court.” But “mechanisms” within the Public Defender Department failed, the judge said.
A special master will report to Ellington about whether the judge’s orders are being followed and whether adjustments need to be made “to bring this case to trial in a timely matter,” Ellington said. He did not find the Public Defender Department in contempt, saying any errors weren’t willful.
Kalinowski, while free on bond pending trial, was hired last year for a $42,128-per-year teaching job with Albuquerque Public Schools, but the Public Defender Department eventually found he qualified for a taxpayer-supported defense by the department. Kalinowski still holds a teacher job at APS.
Ellington noted the struggles of the department in trying to provide effective legal counsel to its more than the 60,000 clients it gets every year. But when the department made the determination that Kalinowski was indigent and qualified for public defender services, it “took on the burden” of marshalling the money and expertise to represent him, Ellington said.
One problem much discussed Monday was that a “forensic auditor” originally hired for the defense under court order failed to produce any usable work product despite being paid $20,000, according to Baur. There was testimony that there are now experts and an investigator working for the defense, which has been transferred to public defenders in Albuquerque.