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Lack of funds hits Public Defender Department hard

Copyright © 2016 Albuquerque Journal

SANTA FE – In the four years since New Mexico voters approved making the state Public Defender Department a stand-alone agency, independence has not meant prosperity.

Chronic funding problems for the agency, which provides legal defense for those who can’t afford their own attorneys, reached a critical level last month when a Lea County district judge found the state’s chief public defender in contempt for his department’s “failure and refusal to represent” defendants in several criminal cases.

Ben Baur, the state’s chief public defender, warned lawmakers in September that the office would have to start declining cases in certain parts of the state due to a lack of funding, despite a constitutional requirement that representation be provided to all eligible defendants.

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He also said the Public Defender Department would be seeking a 10 percent increase in funding in the coming year, which would allow it to hire 25 additional attorneys.

The Office of the Public Defender in Hobbs, which is in Lea County, announced in October that it could not take on any new cases in the adult courts for 90 days.

Baur wrote in court documents that felony cases in Lea County have more than doubled in just five years. Meanwhile, the Hobbs office had two vacancies this fall, leaving just four attorneys struggling to balance more than 1,000 cases. Two contract attorneys together handle an additional 300 to 400 cases at a time.

But even when the office is fully staffed, Baur said, the number of cases has spiked to an unmanageable level.

“What we’ve told the courts, and what I believe,” Baur said, “is that it is not possible, with those caseloads, to give every client effective representation.”

Still, the courts continue to appoint public defenders to new cases and defenders respond with motions explaining that they are unavailable. Every one of those motions, Baur said, has been denied.

Fifth Judicial District Attorney Dianna Luce said in court documents that the unavailability of public defenders has affected more than 200 cases, resulting in a “breakdown of judicial process.” She filed an emergency petition Dec. 1 asking the Supreme Court to require public defenders to represent indigent defendants.

The Supreme Court denied the petition last week. Luce could not be reached for comment.

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Margaret Strickland, president-elect of the New Mexico Criminal Defense Lawyers Association, wrote in an op-ed early this month that a judicial system “tilted against the defense” can turn into wrongful convictions and unnecessarily long prison sentences.

“When a lawyer cannot give a case the time it needs, including time for reasonable preparation, he or she is ethically required to decline the case,” Strickland said. “If that lawyer does not decline the case, they could be in jeopardy of disciplinary sanction, including possible loss of license, by the New Mexico bar that licenses lawyers.”

Baur said there are two solutions to the overload.

“It could be more resources,” he said, “or it could be fewer cases.”

But the state is facing a persistent revenue downturn – lawmakers are grappling with a $69 million projected budget deficit for the current fiscal year – and getting a funding boost could be unlikely in the short term.

“We were working with the Legislature to try to phase in budget increases over time,” Baur said. “In the current atmosphere, unfortunately, that doesn’t look like it’s going to happen.”

Rep. Antonio “Moe” Maestas, D-Albuquerque, who pushed the 2012 constitutional amendment that led to the Public Defender Department being made into an independent agency, said the situation with the department has reached a tipping point.

“It’s still far and away underfunded,” Maestas told the Journal . “We get the criminal justice system we pay for.”

He also said public defenders have no control over their caseloads. Charging decisions are made by prosecutors, and the U.S. Constitution guarantees an attorney for all indigent defendants.

Those factors can create a clash for lawyers who, under state judicial standards, are bound to provide competent legal counsel.

“You have an ethical duty to the profession and your clients, but you have a statutory duty to represent clients,” Maestas said. “They’re stressed (to resolve that dilemma) throughout the system, no doubt about it.”

Other states have experienced similar funding challenges.

In Missouri, the state’s frustrated lead public defender in August ordered the governor, Democrat Jay Nixon, to represent a man accused of assault, but the governor fought the order and claimed it was not legal.

Officials with the Public Defender Department have expressed concerns for years about underfunding and its impact on the state’s judicial system.

Last year, the agency requested an eye-opening budget increase of more than 100 percent, which it claimed was necessary to provide adequate representation. It ended up getting an increase of less than 10 percent.

Over the past four years, funding for the Public Defender Department has grown by roughly 18 percent – from $40.2 million in the 2013 budget year to $47.4 million in the current year. That’s more than twice as fast as overall state budget growth during that same time period.

But lawmakers cut the agency’s funding by 3 percent – or nearly $1.5 million – in a special session held this fall. The budgets of other state agencies also were cut during the special session.

New Mexico lawmakers recently barred the Public Defender Department from paying hourly rates to outside contract attorneys.

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