Thursday, October 25, 2012

Vote for an Independent Public Defender's Office in New Mexico

Quick, on this year’s ballot, what’s New Mexico Constitutional Amendment #5?

Most folks don’t know. But we should. Kudos if you do. If you don’t, you’re not alone. I didn’t know until two lawyers I respect sent me e-mails about it.

Amendment # 5 would replace gubernatorial oversight of public defenders with independent oversight by a public defender commission and would create an independent public defender department. The commission would appoint the chief public defender and oversee the department, but wouldn’t interfere with lawyers’ professional judgment in individual cases.

The U.S. Constitutional right to a fair trial by jury is a fundamental protection we each have against possible abuses by state or federal prosecutors. That right cannot be adequately protected by a public defenders’ office administered by the Governor of New Mexico.

Governors are elected. While campaigning, they often promise to be "tough on crime." There’s nothing wrong with that. But if you were wrongly accused of a crime, and lacked funds for an attorney, would you want to depend on a public defender appointed by that "tough-on-crime" governor? Suppose your appointed attorney couldn’t fully investigate the case or hire a necessary expert witness because that governor hadn’t sought sufficient funds for the public defender’s office?

There’s an inherent conflict of interest. The governor oversees the district attorneys’ offices statewide. The governor decides how much to ask the Legislature to budget for the public defender’s office each year. Might there be a powerful temptation to ask for an annual budget of $1.29 for the public defender, to guarantee more convictions?

Prosecutors can and do seek budget increases and capital improvements. Governors support them – and would face political trouble if they didn’t. Public defenders can’t even tell the Legislature what they need, except through the governor.

This is not about Governor Martinez. It may seem so because she is a governor who has spent most of her professional life prosecuting criminals, has appointed fellow prosecutors as judges, and has remained close to her former associates in the Dona Ana County District Attorney’s Office; conceivably, folks could be prosecuted by someone Martinez hired as an ADA, defended by someone she appointed as a prosecutor, and judged by someone she appointed from among her former ADA’s; but Governor Richardson was equally unenthusiastic about the change. Governors ain’t wild about releasing any of their authority. (Most of us aren’t, whether it’s in our homes or in our jobs or on our softball teams.) Clinging to power is a non-partisan instinct.

Amendment No. 5 is a matter of fairness. There’s little opposition, at least openly.

In our country folks are not guilty unless and until a court determines they are in a fair trial
. That’s a fundamental distinction between our system and the governments of Hitler, Stalin, and Saddam. A key part of that equation is the fair trial, and this Amendment will help preserve that. Let’s be tough on crime without tossing into jail folks who would be acquitted in a fair trial.
* * * * *

I’ve already voted for all five amendments, thanks to early voting.

One of the last items on the ballot stalled me. I got to it and realized I’d intended to research it further on line before deciding how to vote, but I hadn’t gotten around to it.

So how did I want to vote on Bond Question C, the bond for higher education? Normally I’d likely favor such a measure. Higher education is critical – to the young folks who oughta get the educational opportunities I had at NMSU, and to taking our best shot at maintaining a significant position in the world.

But NMSU was extraordinarily stupid in dealing with Barbara Couture, the DACC nursing accreditation problem, and the athletic conference issue. If it’s true that DACC administrators knew losing accreditation was reasonably likely but didn’t warn the students – didn’t DACC essentially defraud those students? College football is such a shark-pit these days that it’s easy to end up on the floor when the music stops in the musical conferences game. That’s where we seem to be.

Even if the Regents were right to tell Couture to get lost, and even right to pay her a huge wad of money to get lost, they were comically stupid in the way they did it, probably in the timing, and certainly in the lack of transparency. Whatever the true story is, we don’t know it, which leaves the "Sound-Off" column full of one-liners about the Regents, and most of us wondering how anyone could do the thing so awkwardly just months before asking us for money.

On the other hand, as one professor remarked the other day, "It’s for capital improvements, and at least the Regents contract out the work." Too, the bond issue is not just for New Mexico State. And whatever the rights and wrongs of how the Regents handled Couture, do we want to penalize the students?

So of course I voted in favor. After standing there for a minute or so. Gritting my teeth, holding my nose. But I voted for it.

[Earlier this week I sent this in to the Las Cruces Sun-News sas next Sunday's column; but then on Thursday the paper ran a "Their View" column by a retired public defender analyzing Amendment No. 5 and making the same recommendation I did, so I offered the paper a replacement column for Sunday that wouldn't be so redundant.  Thus I'm posting this here.]
[The paper also printed a column (after I'd sent mine in) by J. Paul Taylor on the Bond Question I discuss in the latter part of the column above.  We reach the same conclusion, to vote for Bond C,  but his column is a whole lot kinder and more gracious -- with no impolite comments on recent events involvng NMSU.  I'm not as nice a guy as he is.  (Few humans are.)  But I also felt that my recommendation would be marginally more credible if I stated up front that I shared some of the feelings that other citizens say will make them vote against Bond C.  I just don't think those feelings should keep us from doing the right thing.]
[I also enjoyed his column, in which he discusses the specific projects Bond C would help with at NMSU.]


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