There’s a Criminal Defense Crisis In New Mexico, And Nobody Seems To Care
Public defenders in New Mexico are overworked, underfunded, and outmatched, but then that's true pretty much everywhere in the country.
New Mexico is experiencing a crisis that goes to the heart of the integrity of its criminal justice system, and nobody seems inclined to do much about it:
HOBBS, N.M. — When Bennett J. Baur, New Mexico’s chief public defender, took office in April, he set out to review the workload of every lawyer on his team, ahead of another year of belt-tightening in a state whose budget has been crippled by the slump in oil and gas prices.
One place stood out: Hobbs, the largest city in Lea County, a misshapen rectangle speckled by pump jacks in the oil-rich Permian Basin, along the edge of western Texas. The number of felony cases in Hobbs had almost doubled since 2011, rising through the oil boom and bust even as the number of public defenders dropped by one-third in only three months.
In October, Mr. Baur ordered his lawyers here, who on average were representing 200 defendants each, to stop taking any new cases. It was a desperate and unprecedented step in this state, which triggered a nasty legal fight that has roiled this town of 43,000 for months.
“We have to turn off the spigot,” Mr. Baur said. “It is unconstitutional, inefficient and, frankly, not fair to represent more people if we can’t give them a functioning attorney.”
Lisa Kuykendall, Lea County’s chief deputy district attorney, called Mr. Baur’s decision to stop taking on new cases an “abdication of their statutory duty” and an affront to the more than 250 indigent defendants who have appeared in court to respond to criminal charges only to hear their lawyers tell judges, who are themselves working longer hours, they cannot do the job.
“We’re all doing a lot more with a lot less,” Ms. Kuykendall said.
Late last month, a district court judge found Mr. Baur in contempt of court, forcing the public defenders to go back to taking on cases. So the lawyers changed strategy. They started showing up in court and immediately asking judges to dismiss the cases without prejudice, meaning that the cases could still be filed later on.
So far, none of the judges have granted their requests.
And the crisis continues.
Poor defendants almost always make a first court appearance on their own, without a lawyer present to interpret the charges against them. Routinely, they meet the public defenders assigned to represent them only moments before they are supposed to negotiate critical decisions, such as a plea deal or the conditions for their release.
Public defenders contend that they are unable to properly prepare for hearings, thoroughly interview witnesses, evaluate the evidence against their clients or file the correct motions because they are stretched way too thin.
There is no relief in sight. Already confronting a $1.3 million shortfall this year, the courts are preparing for more cuts. Earlier this month, Arthur W. Pepin, director of the state’s Administrative Office of the Courts, asked magistrate and district judges to send him a memo listing ways they can trim expenses further.
“We are strained and we consistently hear prosecutors and public defenders tell us there are not enough of them to do the job that they ought to do,” Mr. Pepin said. “We’ve reached a point where the judges have grave concerns about the system’s ability to deliver justice.”
Mr. Baur had tried cajoling defenders assigned to other parts of the state to move to Hobbs, where housing remains relatively expensive and scarce. He had met with judges and the Lea County district attorney, Dianna Luce, to brainstorm solutions. He had advertised for two open positions and two new slots, hoping to bring the number of lawyers in the office to eight.
Months passed and no solution was in sight. One new hire resigned a week ahead of his start date. Most applicants, Mr. Baur said, were not even qualified enough to be interviewed. One who got hired this month was not experienced enough in criminal trials to take on a full caseload.
By then, Mr. Baur had already taken the dramatic step of turning down any new cases. “There’s no cavalry going over the hill,” said Mr. Baur (pronounced BOW-er). “We’re going to have to figure this out on our own.”
At the same time, the City of Hobbs finds its budget in the black. Having learned their lesson from previous boom-and-bust cycles, its leaders decided to set aside a third or more of what the city was taking in during the flush times. The saving has helped to hire new police officers, which has led to additional strain on the state-run courts.
What’s going on in this one county is New Mexico isn’t at all uncommon. Across the country, public defenders and attorneys whose primary clientele consists of representing people who cannot afford attorneys by placing themselves on the court-appointed list find themselves overworked, underpaid, and outmatched by prosecutors offices that have access to an essentially unlimited budget. They are overworked because there are usually only a handful of attorneys willing to take on the thankless task of representing people charged in criminal cases, and even fewer willing to do so for compensation far below what they could likely earn from representing the public at large. Attorneys who work in public defenders offices, for example, generally earn less than their private sector counterparts and private sector attorneys who agree to place themselves on the court-appointed list for indigent Defendants find that the compensation they receive is far below what they could charge a Defendant who came into their office off the street. They are unpaid because, for the most part, paying for the defense of people charged with crimes is politically unpopular, with many members of the general public apparently believing that there’s something wrong with attorneys who represent criminal defendants to begin with. And, finally, they are outmatched even when they do try to do their jobs by prosecutors who have access to expert witnesses and other tools that attorneys typically use thanks to a virtually unlimited budget while public defenders and court-appointed counsel must generally receive court permission to use state funds to hire experts who might assist in their representation of their clients, or at least point out flaws in the analysis of experts employed by the state. The result is that, even when publicly-funded defense lawyers are being as zealous as possible in representing their clients, they are essentially doing so with one hand tied behind their back. ‘
One unfortunate consequence of this system, of course, is the impact it has on the quality of the defense that indigent defendants receive. Because of all the disincentives and road blocks noted above, few attorneys volunteer to represent indigent Defendants, and those that do are seldom among the best in their profession. The reasons are easy to understand, of course. When you can make twice as much, or more, in private practice as you can representing the poor charged with crimes, there’s an obvious incentive process at work. Additionally, even when it is the case that public defenders and court-appointed counsel are highly competent and skilled attorneys — and to be fair that is quite often the case, especially in cases involving serious and high-profile crimes — the fact that the case loads these attorneys are working with are so full means that they simply can’t give their clients the amount of attention that they otherwise might like to in order to represent them as zealously as possibly. The result is that these attorneys often have the incentive to push their clients into accept plea deals rather than forcing the state to prove its case on the merits, and are often forced to walk into court with only a minimal amount of time to prepare for a trial during which their client may end up facing conviction and years in prison. Then, of course, there are the cases where the public defender or court-appointed attorney is grossly incompetent, such as infamous cases from jurisdictions such as Texas where we’ve found cases where defense counsel were falling asleep during trial or making obvious mistakes that deprived their clients of the right to a fair trial. In some cases, these errors and omissions were caught on appeal and defendants given another trial, but one can only assume that those case are but a handful of the cases where an under-funder, overworked, and outmatched criminal defense bar is failing to do what we need it do.
As I’ve said before, the criminal defense attorney is a crucial part of our Constitutional system:
The Sixth Amendment guarantees every person accused of a crime the effective assistance of counsel. The Seventh Amendment guarantees the right to trial by jury. Both of these provisions, as well as the other parts of the Bill of Rights, and the two centuries of case law that have expounded on them and interpreted their meaning and application, stand for the proposition that each person accused of a crime is innocent until proven guilty, and they are entitled to require the state to prove the case against them beyond a reasonable doubt. It’s the job of the criminal defense attorney to ensure that those rights are protected by being the person who presents the court with the arguments and evidence that tends to call the state’s case into doubt. There are limitations, of course. A defense attorney, any attorney actually, is not permitted to lie to the Court by presenting false testimony or evidence or misrepresenting the law, and they aren’t permitted to knowingly allow their client or any other witness to permit perjury. All of this is designed to ensure as much as possible that only someone who is actually guilty of a crime is punished, even if it means that someone who is factually guilty goes free because of what some people derisively call “technicalities.” Those technicalities are your Constitutional rights.
Public defenders and court-appointed attorneys are an important part of this process because they help make sure that the system works fairly for all defendants regardless of whether or not they can afford an attorney. When the system fails the way it is so obviously in Hobbs, New Mexico, and in countless other jurisdictions across the country, everyone’s rights are adversely impacted.
Well, why should anyone care? Poor, unproductive, and non-voting.
Here’s why: “Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.” Matthew 25:40
When the GOP talks about cutting government, this is what it looks like. But don’t worry. Jan. 20th, it all changes. Public Defenders for all. At no cost. Every criminal will not only get a Public Defender, but the best Public Defender ever. Because… Donald Trump.
ABA Model Rule 6.1:
Combine the decimation of public defenders, the adoption of civil forfeiture, and free speech zones — I don’t want to make a slippery slope argument, but we better hope that slope isn’t slippery, because we’ve been slowly edging towards a police state.
And then there is the bulk surveillance Snowden confirmed, and the closed courts for NSA warrants… I separate them because security-vs-liberty is a different issue, and may be making us safer. I don’t see any benefits to that first group though.
As noted above, this is what happens when we, as a society, decline to fund government (or seek to fund it as little as possible).
See. also, roads, bridges, prisons, schools, etc.
Rich people have all the money. So the only way to have nice things is to tax rich people. Rich people don’t want to pay taxes. If there’s one thing we know about politics, it’s that rich people get what they want.
I blame JFK. Should’ve left the top marginal rate where it was, confiscatory.
I’ve been depressing myself lately by reading Piketty, Capital in the 21st Century. I’ve long felt I grew up in a golden era, a sweet spot of democracy and middle class prosperity. Piketty makes a heck of a case that this is true and was due to destruction of wealth in the World Wars. And temporary. The rich are gonna get richer, and the rest of us are screwed.
Excellent piece, Doug.
I have good friends who are private defense attorneys, and one who is a Superior Court judge in a very populous district, and both would agree with the points you enumerated here.
A few years ago, in the heart of the Bay Area, I served on a jury, for a criminal case – a young man (a store clerk) was accused of stealing money from the business, overnight receipts – and it became apparent to me soon on that the evidence marshaled against the defendant was extremely weak. The trial, including jury deliberations, lasted a full day, and (we) the jury quickly came back with a unanimous verdict of not guilty.
Afterward I took the opportunity to speak with both the public defender and prosecuting attorney; both said that the case had been in thee docket for 18 months before it reached trial. The prosecutor said that he picked up the jacket and familiarized himself with the case the day before, and the public defender said that the store should not have decided to prosecute this employee with evidence that amounted to hearsay. This young man’s future was in abeyance based on little evidence, the efforts of overworked attorneys to administer justice, and the hope that a jury would get it right.
I came away from that experience depressed by the fact that justice was being administered under such difficult circumstances, that the kind of resources it would take to do this properly were not available.
For the most part the public does not have the will to pay for the resources need to alleviate this kind of situations.
@gVOR08:
I’ve often thought that in a rational world the ideal form of capitalism would have a floor and ceiling on incomes. Something like the guaranteed basic income on the lower end to ensure that nobody is forced to live on the streets or go to bed hungry. Then a high >90% top marginal tax rate, along with a similarly high estate tax (kind of like what used to exist in the 40s and 50s), to ensure that no single person or family is able to accumulate too much wealth/power. This top tax rate could be set to kick in at a high enough level that there would still be plenty of room to differentiate between those who are “rich” and those who are not. Poverty would be much lower, but we would likely live in a world without so many billionaires … which even some billionaires might agree wouldn’t be such a bad thing.
Not at all likely to happen in our current political environment … but one can dream that rationality might return at some point in the future.
In the meantime, we’ll continue to live in a country where the rich live in gated communities and can commit fraud with impunity, while the poor (as noted in Doug’s post) are not even provided with the minimal protections guaranteed by the constitution.
Sometimes it’s hard to be an optimist these days. :-/
There’s a Criminal Defense Crisis In
New MexicoAmerica, And Almost NobodySeems ToCaresWe pay a lot of lip service to Liberty and Justice For All! but we don’t really mean it.
If we were serious about it, then the prosecutors and public defenders would receive roughly equal funding, and we would everyone to have a strong advocate. But we obviously don’t aren’t serious.
@Todd: I am frequently reminded of the famous letter from President Eisenhower to his brother Edgar:
Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas. Their number is negligible and they are stupid.
They are now billionaires, their number is now legion, but they are still stupid.
@Dave Schuler: The operative word in your citation, because it is a “model rule” is, of course, should.
maybe if criminals would stop , oh never mind…..they seemingly have more rights than their victims and society.
maybe force the larger firms to do some more “charity” for those who can’t seem to abide the law and don’t save money to deal with their problems? nah, that’s insane!
i can’t shed a tear for felons, they aren’t victims.
Like everything else in this country, the justice system works pretty well if you have money, and it grinds you down into the dirt if you don’t.
@bill:
I see, so you believe anyone accused of a crime is automatically a felon?
I accuse you of bank robbery. You guilty bastard!
There are probably a lot of the cases that involve non – violent crimes, such as certain traffic violations, littering, disturbing the peace, loitering, or other. A choice of options would be available for the defendants to choose: fine, some kind of community service, move to another state to start over, some form of restitution or penance to any victims. After they satisfy whatever they chose to do, then the record would be wiped clean like they had never committed the crime. Now that seems reasonable and sensible.
@bill: My fear is that delaying trials while trying to get some defense going gives habitual criminals time to practice their trade. At the same time an inadequate defense might hurt the innocent which I’m sure you don’t want. An efficient defense system would quickly get the bad guys off the street and free the innocent.
Your comment suggests that you favor mandatory defense work by attorneys; is that right?
@Steven L. Taylor:
It’s a self-fulfilling belief system:
1) Government is the problem, so let’s limit its funding and its ability to do things.
2) ‘Hey, things are getting worse!’
3) Repeat.
There is a mirror-image belief system that government can solve more things but at this stage, we’re really nowhere close to that.
Doug, thanks for writing this, I just wish the logic you express would sway the opinion of the populous.
@bill: “maybe if criminals would stop , oh never mind…..they seemingly have more rights than their victims and society.”
Right, Brainboy. Because everyone who is arrested is guilty.
Just wait until they find your meth lab…
@bill:
In other words: With liberty and justice for ME, ME, ME
@Steven L. Taylor:
Governments are raking in plenty of money. They’re spending it badly. We have cities that are spending hundreds of millions on stadiums for billionaires and crying poor when it comes to infrastructure. Cities and states can ALWAYS find money to fund more cops, more prosecutors and more jails but are suddenly bereft when it comes to public defenders. Many school districts are spending more per pupil than state universities but can’t keep ceilings on the rooms. The problem is not a lack of money**. It’s corruption waste and badly misguided priorities.
Let me put it this way. If states and cities stopped giving money to sports teams, they could hire something like 10,000 public defenders. If the federal government took 10% of the money they’re spending on War on Terror “intelligence”, they could fund 100,000. They money is there. What is lacking is the political will to do it.
(** Poor areas like Hobbs do have a lack of money. But they don’t have the tax base to pull in the needed cash. This is where state aide can be helpful. But the states are too busy giving $7 million tax breaks to Carrier so they can make Donald Trump look good).
@bill: Hi bill — You might find my reply a bit different from other commenters here. While “force” is a strong word, I would advocate those attorneys who do make so much more than a public defender offer their services more often than they do.
There are requirements put upon attorneys to maintain their licenses to practice law, mostly educational. Bar associations across the country could in fact require pro bono work (and not some dipsh!t work) in order to maintain their licenses. In other words, there are ways to fix this problem.
One other way is for cops and DAs to stop the hard on they have to squeeze money out of the poorest of the poor.
It seems clear from your comment that you don’t really understand why the protections against law enforcement zeal are included so prominently in the constitution. “They seemingly have more rights than their victims and society,” shows how little you understand.
@Hal_10000:
I’m sure that you think the “problem” with welfare programs are waste, fraud and abuse despite the fact that it is negligible and always has been. While I might agree with your stadium hobby horse, that doesn’t explain the problems associated with funding in places that HAVEN’T spent their money on stadiums, which I reckon are far more in number than those that have.
You are just another example of the many people who get worked up about the “waste” so much that you cannot see that helping people out of poverty in a humane way even if there is some fraud is far better than leaving them in poverty.
@Tyrell:
I don’t see “pleading not guilty” among those choices.
@Hal_10000:
I can only speak for my state, but here the hundreds of millions on stadiums for billionaires come at the request of the citizens of the city that wants the billionaire’s “job producing” sporting franchise and are called “valuable infrastructure additions” by all concerned. Yes, I’d like it to stop too, but I don’t see it happening in a nation that can afford to pay Choo Shin Soo 30-some million dollars a year, guaranteed for 7 years, to play baseball for, possibly 5 of them but can’t afford sick leave for workers anymore because it’s too expensive.
After I mentioned this on Twitter, I was referred to this post at memesis Law that discussed the issue in depth. Basically, the legislature is funding indigent defense at about a tenth of the level it needs ($10 million in a $6 billion budget). And the NM Supreme Court decided, unanimously, that $700 was adequate compensation for defending an accused felon, which works out to $3 per hour.
Note that Suzanna Martinez has been increasing spending — on cops. Note that New Mexico is home to Albuquerque, which has been hiring cops dismissed from other force and had a spate of shooting of citizens, including the James Boyd case. This is a choice the state has made, not some visitation of budget shortfalls.
@Just ‘nutha ig’rant cracker: “I can only speak for my state, but here the hundreds of millions on stadiums for billionaires come at the request of the citizens of the city that wants the billionaire’s “job producing” sporting franchise and are called “valuable infrastructure additions” by all concerned.”
Not in Minnesota — to the best of my knowledge, our stadiums have never been put to a public vote, and we have built 4 in the last several years with a 5th in the works. That’s the Twins, Vikings, Gophers, Saints, and now a soccer stadium.
https://www.minnpost.com/political-agenda/2015/07/vikings-stadium-makes-marketwatch-list-worst-deals-sports-teams
@Hal_10000: I half agree: there are certainly plenty of examples of profligate spending and I concur that cities ought not be spending money on stadia for billonaire businesses. But that is a problem limited to specific cities and is the kind of example that is both true and not really indicative of the larger problem. Alabama’s schools and prisons are not suffering, for example, because of too many professional sports stadia being built (but yes, the state spends too much on college football–although even there, it is a drop in the bucket as compared to the broader issues).
@bill:
*sigh* This type of thinking is a major problem.
Note: not all who are arrested are guilty, nor are all who are accused of terrorism as terrorists. The world is not so simple.
And gee whiz, are you really unfamiliar with the phrase “innocent until proven guilty?” It is a rather foundational principle. You might want to do some reading on it.
I applaud this article. We do need to raise awareness.
What would happen if the defendents, or their public defenders, stopped accepting plea deals and took every case to a jury trial? Is that feasible, as a way to protest and grind the system to a halt to force change?
@rachel: I don’t think many prosecutors are offering a “not guilty” plea to the defendants. They offer “guilty” to a lesser crime and innocent people with poor defense have no choice but to plead guilty to something they didn’t do.
Every conservative knows that the there is only one Amendment in the Bill of Rights worth enforcing and its not numbers 4, 5 or 6.
@stonetools:
But all the amendments are worthy of misinterpretation, so you should at least acknowledge that they are consistent.
@Steven L. Taylor:
Alternatively, it’s not a taxing problem, but what we do with the money.
http://www.zerohedge.com/news/2017-01-01/its-corruption-steroids-look-inside-el-monte-california-public-employee-pension
@J-Dub: That might jam up the system more than it already is, but that is no guarantee there would be any changes.
“The mills of the courts grind slow, but they do grind”
@Guarneri: My honest answer is that sure, in some cases it is about allocation of resources. However, the reality is that that, in and of itself, is a simplistic answer.
(And, really: please find better sources than Zero Hedge).
@Guarneri:
As you may know, the financial condition of a city like El Monte in the greater Los Angeles area has very little to do with public funding of the judicial system in California.
@Guarneri: You trust something that gets put out by a Russian propaganda website?
God you’re stupid.