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Budget problems of public defender stall capital cases

SANTA FE – The money troubles at the Public Defender Department are echoing in the cases of the two men who have been fighting for years to get off New Mexico’s death row.

The state Supreme Court last week refused a request from the contract lawyers representing Robert Fry and Timothy Allen that it order them paid on an hourly basis, as they have been in the past.

The dispute over pay already has stalled the cases, and it’s unclear what the impact of the high court’s recent ruling will be.

Fry and Allen are the only people facing execution after the state abolished the death penalty in 2009 for future murders, replacing it with a sentence of life with no possibility of parole.

Allen was convicted of the 1994 murder of Sandra Phillips of Flora Vista, in northwestern New Mexico. Fry was convicted of the murder of Betty Lee in 2000 in San Juan County.

After capital punishment was abolished, they went to state district court alleging that the repeal made their sentences unconstitutional. They lost.

Now their cases are pending in the state Supreme Court, which in February ordered the men’s lawyers to submit more extensive briefing, including a comprehensive survey of how similar murder cases have been handled in the past.

But the lawyers’ contracts with the public defender expired on June 30, and the public defender told them it could no longer continue to pay them at an hourly rate unless ordered to do so by the Supreme Court.

That’s because of language the Legislature put in the state budget for the current and previous fiscal years, which says appropriations to the Public Defender Department “shall not be used to pay hourly rates to contract attorneys.”

Senate Finance Chairman John Arthur Smith, D-Deming, said it’s an effort to keep track of costs.

“Given the type of budget constraints we have, we want to know how much we’re going to be spending,” he told the Journal. That can be done if there’s a flat fee per case, but not if it’s per-hour billing, he said.

The Public Defender Department says hourly rates are warranted in some cases.

“The idea is, this is a particularly complex case better suited to hourly rates,” said Ben Baur, the state’s chief public defender.

Baur said he wasn’t sure what the next step would be in the Fry and Allen cases.

“We have to talk to the attorneys on these cases, and go back and see if there’s any way we can structure a payment arrangement that both meets the requirements of the Legislature and actually makes sense in terms of reflecting the work that they do,” he said.

The prohibition against hourly rates was challenged in an earlier case, and the Supreme Court ruled the Legislature had the authority to do that. But it also acknowledged that severe limitations could raise the issue of ineffective assistance of counsel in some circumstances.

In the recent ruling, the high court said it hadn’t been specifically shown that hourly rates are necessary for effective assistance of counsel in the Fry and Allen cases. But it left the door open for that argument to be made in the future.

The public defender has had chronic funding shortages, and Baur has told legislators the office would have to start declining some cases despite its constitutional mandate to represent eligible defendants. The department will ask for a 10 percent increase in funding for next year.