Sunday, October 12, 2014

Law and Fairness Require Adequate Funds for Defense of Indigents Accused of Crimes

I want to revisit the issue of adequate legal counsel for indigent defendants. Folks accused of crimes who can't pay for a competent defense.  (See “NM Must Provide Indigents a Fair Defense” from 4 May 2014.)

As I mentioned in the earlier column, defense lawyer Gary Mitchell filed in several cases a motion asking the judge either to order New Mexico either to fund a competent defense, as mandated by U.S. and State Constitutions, or to dismiss the case. Put up or shut up.

Now District Judge Karen A. Parsons, in an “Interim Order to Provide Adequate Counsel Posthaste,” has indeed ordered the State to provide funds for effective assistance of counsel for indigent defendants in the 12th Judicial District.

After hearing testimony (from, among others, local lawyer Michael Stout, who chairs the NM Public Defender Commission) and reviewing papers, Judge Parsons stated that “a crisis exists in the 12th District regarding appointment of counsel for defendants in criminal cases.” (The same crisis would appear to exist here in the 3rd J.D.) 

After reciting the relevant Constitutional provisions and the policy to appoint counsel within 48 hours of learning of a defendant's need, Judge Parsons ordered changes to address the “emergency situation leaving defendants unprotected from violations of their Constitution[al] right to counsel.” She ordered the Public Defender's Office to provide counsel by 11 October for defendants who were without counsel on 1 October – and to provide counsel within 48 hours of learning of any other indigent defendant's need.

I commend Mitchell for taking a bold step to confront the systemic injustice. I'm glad Judge Parsons acted.

But truly solving the problem will require our representatives in Santa Fe to act. I'd urge anyone talking to candidates to seek a commitment to support reasonable and effective action to ensure that funds will be available for defense of indigents accused of crimes. It's something law and conscience require us to do, despite other high-priority matters we hope the State will fund. 

Others may disagree. Others may figure that where there's smoke there's probably fire, so the folks getting accused of crimes probably did something wrong, or that people who can't fund their own defenses should have been more prudent and put away money just in case. That is, when we have our own houses to pay off and kids to feed and educate, who wants to ante up for strangers accused of crimes?

Because we are each that stranger. Each of us could be in that position. As the well-known phrase puts it, “There but for the Grace of God go I.” 

But more because we inherited the blessings of a country without a King, Emir, or dictator, but with a plethora of freedoms. A country that ain't perfect but has some pretty fine ideals, including freedom, fairness, equality, – and justice for all. 

It feels good to live in a country where we honor (and can afford) “justice for all.” It feels good to contribute my share. (I'm a lot more willing to contribute than I am to some of our government's other activities.)

I also understand, as a lawyer, why “justice for all” costs so much. Not lawyers' greed, but funds for investigators, discovery, witness interviews, legal research, motions, and possibly expert witnesses. 
Maybe one solution would be to limit prosecutor and defense counsel to, say, only six pretrial attorney hours and two investigator hours on a particular case, and equalize the two sides' resources that way; but that would hardly facilitate a meaningful search for the truth. 

That's why I'll be mentioning this issue to legislators and candidates this election season.
[The column above appeared in the Las Cruces Sun-News today, Sunday, 12 October.]
[I do urge everyone to include this issue among the ones you stress when talking to a candidate for election or re-election to represent us in Santa Fe.  Sadly, it may turn out that the division between opinions will mirror party lines.  It shouldn't.  This is an issue of basic fairness --  and of following the law.  Our system of government stresses the adversarial process in which champions -- like the knights of lore -- clash vigorously, using the factual, legal, and oratorical weapons at hand in a contest we suppose will reveal the truth.  (Another country might use a system in which a magistrate investigates matters fully, requiring witnesses to appear before him or her as needed, and reach a fair conclusion.)  For that to work, prosecutors, judges, and defense counsel all need adequate funding.  We've rightly concluded (and federal and state constitutions mandate) that where someone can't afford a defense we should fund that defense.  Doing so without adequate funding is as effective as having medicare supply poor retirees with a primer on healthy foods to cure cancer, while rich folks get radiation treatments or surgery.]
[Anyway: counsel such as Mitchell, who step in where there's no public defender or the public defender has a conflict of interest, should be paid fairly for the work; and the Public Defender's Office itself should be adequately funded.  The former prosecutor in the governor's chair should know all this as well as anyone, and we'd hope she too would support adequate funding.]

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