D.A. Writes the Cops a Blistering Letter

Why can't local law-enforcement agencies work more closely together?

The Sun-News recently reported that Detective Irma Palos has sued the City. She's the case agent who investigated Tai Chan, accused of murdering a fellow Santa Fe sheriff's deputy. (His first trial ended in a hung jury last May.) Palos alleges male police retaliated against her for helping bring to justice Detective Michael Garcia, the sex-crimes investigator jailed for sex crimes, and for telling a lawyer about sexual banter male cops allegedly subjected women to. The alleged retaliation includes denying her resources necessary to investigate the murder case.

Those events raise many questions, but one is: why didn't someone tell District Attorney Mark D'Antonio, who's prosecuting Chan, that his star witness was saying her investigation was compromised?

Tuesday D'Antonio wrote LCPD Chief Jaime Montoya that neither LCPD nor Palos “informed the D.A.'s office of the detective's legal action.” He called that “deplorable and devoid of any rational thinking.” He added that Palos's lawsuit suggests “possible police corruption, obstruction of justice, and the mishandling of a major case involving the alleged cold-blooded assassination of a police officer.” D'Antonio says the Sun-News story March 28 was his first notice of Palos's allegations. (A confidential source says the D.A.'s Office learned of the problem earlier in March.)

If you're Palos, another detective working on the Chan case, or the police chief or city attorney, how in the *#*# does it not occur to you that, gee, maybe you might want to tell the D.A. there's this ugly stuff out there the defense lawyers might try to use against him? 

I asked. No answer. Montoya said, “I'm not going to get into that,” he said, adding that he'd just received the DA's letter and would be discussing it with the DA and with his detectives. 

You might ask if this was a confidential personnel matter; but the October filing made it public. You might point out that Palos's allegations are merely allegations. Why bother the D.A.? But these allegations, whether valid or not, could seriously harm the case. They undermine police credibility. Used well in cross-examination, they hurt Palos as a witness. “Didn't you testify under oath that you did a great investigation?” “Haven't you now alleged under oath that your investigation was compromised?” “How can the jury trust you?” Indeed, Chan's lawyers are asking the court to let them use the material.

I also asked Montoya about the alleged retaliation. He said little, citing the lawsuit; but the City has denied Palos's charges and is fighting the lawsuit. Montoya said, “Cultural issues and sexism are something we address every day, not only in our training but in managing and mentoring employees. A hostile work environment is completely contradictory to our values as a department.” Garcia's conduct occurred before Montoya became chief. 

We shouldn't prejudge Palos's lawsuit. We should hear the evidence. D'Antonio notes in his letter that without further information he neither credits nor discredits Palos's allegations. 

But I see no reasonable explanation for not informing the prosecutor. Among other problems, if the alleged obstruction kept exculpatory information (even minor facts) from being given to defense attorneys, that alone could jeopardize the case. 

Further, obstruction of justice is a crime! Whether I hide stolen silverware from the cops or the police are screwing around because they don't like a detective, it's potentially criminal conduct. Who's investigating that? If no one has, the D.A. will. But October 2014, or even October 2016, would have been a better time to investigate possible malfeasance than April 2016. Chan's retrial is set for May 8.

                                              -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 9 April 2016, as well as on the newspaper's website and KRWG's website; and KRWG Radio will run a recorded and shortened version twice on Wednesday.]

[One thing I lacked space to add was that this occurred in a context of inadequate communications and cooperation between or among law-enforcement agencies here.  For one thing, last I heard the Doña Ana Sheriff's Office still hadn't agreed to cross-commissioning, although LCPD and the State Police have asked for it and I think the D.A. favors it.  In addition, prosecutors would like to be informed more quickly and fully when a murder occurs, and even visit the scene.  Further, some DASO deputies and LCPD detectives reportedly feel their job is over when they've delivered the case to the DA -- and aren't easily found for follow-up investigation and interviews. 

One issue is the same one we all saw fairly often on "Law and Order": cops and lawyers are seeking the same result, but with different roles and different rules.  Both want the bad guys put away; and, at least theoretically, both want the not guilty not jailed; but whereas cops have to locate and arrest the subject, the lawyers have to complete a very complex obstacle course called a trial.  Trials have complicated and sometimes arcane rules of evidence, the prejudices and sympathies of judges and jurors, the unpredictability of jurors, and detailed procedural rules designed to keep the playing field somewhat fair.

The cop, at one extreme, gets the bad guy in jail and goes out for a drink, satisfied.  Law says s/he's supposed to help with the prosecution, but some cops think that's the lawyers' job.  What the hell did they go to law school for, and there are too many additional bad guys out there to waste time talking to additional witnesses or going back to verify some loony idea an assistant prosecutor dreams up.  And some of them loathe and evade the laws about searches, confessions, and what-not.  Plenty of popular movies establish that most of us would be tempted to do the same as the cops.

But the lawyer knows .  S/he has very clever and well-educated people called defense lawyers waiting to pounce on any error, to thwart the prosecution; and as we all know, that prosecution has to convince a dozen strangers it's righteous, beyond a shadow of a doubt.]

D'Antonio's letter (sent Tuesday) was blistering.  After advocating "unity and mutual respect between law enforcement entities" as essential elements in protecting the public," he noted a "strained relationship between our two offices" which "leads to unproductive and ineffective law enforcement. This prevailing attitude has culminated in the failure of LCPD to notify my office and I of crucial information in the prosecution involving a murdered police officer."
He added:
The current police culture of shifting the blame for poorly-investigated cases, compounded by disgruntled police officers, has led to inadequate investigation and sloppy police work.  It must come to an end.
. . . 
The recent situation involving the Tai Chan Murder case, in which you intentionally refused to share critical information in a pending and active prosecution with my office, is outrageous and an affront to justice in our community.  We have attempted to work closely with  the case agent, Detective Palos, and have done everything in our power to present the best case possible.  The fact that neither Detective Palos, nor any representative from LCPD, informed the DA's office of the detective's legal action, filed in October 2015, is deplorable and devoid of any rational thinking.  The facts of the suit suggest possible police corruption, obstruction of justice, and the mishandling of a major case involving the alleged cold-blooded assassination of a police officer.  I will not credit or discredit Detective Palos' allegations without more information.  I need to immediately review the results of a thorough internal investigation.  Although I was never informed that such an investigation took place, I must assume that such an inquiry was conducted since the allegations were filed in October of last year.  What makes matters worse is, as of today's date, April 4, 2016 m at 11:00 a.m., despite the news coverage, I have not been notified of the incident by your or by any official.  Please explain that to the public.
No matter what the evidence reveals, the facts are important to the prosecution of the Chan case. . . . Your department's failure to disclose any information in this matter in a timely manner has made our prosecution more difficult.  In addition, you have provided defense counsel alternative methods to attack the State's evidence.
. . . [T]he defense team representing Mr. Chan has filed newly-conceived motions attacking the evidence and testimony in the upcoming trial.  Since, to date, you have yet to notify me of any investigation regarding the allegation of misconduct and the denial of investigative resources, I am unequipped to properly and intelligently respond to any defense motions filed based on Detective Palos' allegations.  If I do not receive a full and complete debriefing and report on the investigation and its results, I will conduct my own investigation into the matter.  

Friday, well after I sent in the above column to the Sun-News, City Manager Stuart Ed responded, acknowledging receipt of the letter to Montoya and adding: 

In my capacity as Las Cruces City Manager, I have direct oversight of the Chief of Police and Las Cruces Police Department. This is the first I have heard of these issues. While I am grateful you have made me aware of them, I confess it is disappointing such issues were not vetted and resolved at the lowest levels possible with my involvement through open discussion and the courtesy of a frank and honest face-to-face dialogue sooner.
You have my assurance I will do everything in my power to bridge the apparent communication gap between your office and the Police Department. To that end, I propose facilitating process improvement meetings between you and Police Chief Montoya to insure all lines of communication, professional courtesy, and service to the community remain steadfast and responsive and that our Police Department
works in close partnership with your office at all times.
I believe we have a well-led Police Department and have complete faith and confidence in Chief Montoya and his leadership. I know both he and I are eager to vet and correct any operational issues between our two organizations. I am confident we can successfully address any and all concerns and come to a resolution that insures our community continues receiving responsive case investigation and
prosecution services from both the Police Department and the District Attorney's Office. Let us begin with open and honest dialogue at the top between you, myself,and the Chief of Police. You have my assurance I will shepherd this important partnership in my capacity as City Manager.

Ed's letter is calm and constructive, neither apologizing profusely nor fanning the flames by undue defensiveness; but it doesn't answer D'Antonio's questions.  It does say the City will reach out to the D.A.; and obviously we should all, with the possible exception of Chan's defense counsel, hope that happens soon and leads to a full and frank exchange of information about Palos's allegations -- as well as improved cooperation on future cases.

Mark D'Antonio Should Continue as our District Attorney

In 2012, Democrat Mark D'Antonio beat District Attorney Amy Orlando, Susana Martinez's protegé. 

Martinez/Orlando mandated a scorched-earth policy: get rid of paperwork that might help D'Antonio and his people get oriented. D'Antonio invited everyone to reapply and hired all but one of those who did so; but Martinez people viewed staying as “disloyal.” Most top staff left. 

Four years later, James Dickens, a ten-year Martinez assistant, then Orlando's chief deputy, is challenging D'Antonio – in the Democratic Primary. In 2012, Dickens didn't apply to work under D'Antonio. He joined Republican Diana Martwick, 12^th District DA, despite the long commute to Alamogordo. Dickens registered Democratic in 2013.

After winning a tough election against incumbent Orlando, D'Antonio brought serious and positive change. Do I agree with his every decision? No – but I'm not a prosecutor. 

Martinez/Orlando reportedly charged defendants with higher-level crimes than the facts warranted, knowing that lingering in jail facing those charges would soften up some defendants to plead to anything. (In 2015, the Court of Appeals overturned defendant Flores's conviction for letting his infant child die, because Martinez/Orlando had violated his Constitutional right to a speedy trial.)

A district attorney should aggressively prosecute crimes, particularly violent crimes, and should represent the community and victims' interests. But s/he also has a duty to justice. As one lawyer said, “D'Antonio was quoted the other day as saying 'people charged with crimes have rights.' I never heard that from Martinez or Orlando. And it's not a sign of weakness. It's a sign of respect for our system.”

That's a key difference. Respecting everyone's rights doesn't equate to “soft on crime.” Actually, it makes for better protection for the community. Trampling on defendants' rights means sometimes watching folks like Flores walk free. 

This race raises two interesting questions: what's Dickens doing in the Democratic primary? and has he committed a serious ethical violation?

He says he became a Democrat because on key issues Democrats, more than Republicans, are working toward the kind of world he wants for his children. (See my blog for details.) He sounds convincing.

But until last month all his campaign contributions were to Republicans, ranging from Martinez to 2014 sheriff candidate Craig Buckingham, and including several Martinez judicial appointees (all fellow former prosecutors under her). 

Would Dickens bring back Martinez-style handling of the office? One lawyer notes that while Dickens may have good instincts personally, the entire legal environment he's grown up in has been questionable: Martinez/Orlando, then the 12^th District. A major campaign contributor is Matthew Gaddy - who gave Martinez big bucks both times she ran and helped fund the vicious attempt to recall three of our city councilors.

The ethics issue concerns Dickens's use or abuse of the electronic Case Management System. Attorneys are meant to use CMS for state business. Dickens looked into 48 Las Cruces cases during January-March, then told the Sun-News about it. The files contained confidential information. He used state resources for his own political purpose. D'Antonio, in a letter to Dickens's boss, called this “a serious ethical breach . . . potential criminal activity.” Dickens told me he could have had legitimate reasons for looking at some cases. (48 seems a lot.) He then asserted it was no big deal. 

Experienced neutrals are reluctant to comment, but one called the action “very unusual” and a New Mexico D.A. stated, “I can tell you I wouldn't do it.”

I like both men. Dickens is pleasant, and an experienced prosecutor, but I don't see that he would improve the office. I do see significant risks. I'll vote for D'Antonio.

                                               -30-

[The column above appears in the Las Cruces Sun-News this morning, Sunday, 22 May, and will appear shortly on the KRWG-TV website under News --> Local Viewpoints.  I welcome comments, questions, and criticism here or on either of those sites.]

[On circumstances of Dickens's departure from 3rd J.D.: D'Antonio says he invited everyone to reapply.  Those who did reapply had no break in service.  Dickens says: (a) D'Antonio did not immediately make it known that people were welcome, (b) when that invitation was made, Dickens had already talked to the 12th District, and that (c) he wouldn't have been Chief Deputy under D'Antonio.   
D'Antonio says the top lawyers left en masse -- and that Dickens never spoke with him.  D'Antonio never said Dickens could not continue as Chief Deputy, because Dickens never asked, but D'Antonio concedes that the likelihood of Dickens being Chief Deputy was pretty limited.  He also says that knowing Dickens loathed his commute to Alamogordo, he reached out to him twice during the past four years to offer him a job. Once Dickens declined, once he didn't respond at all.
Who do I believe? D'ANTONIO.
First of all, the context: almost everyone close to Martinez left if he or she could afford to.  As D'Antonio puts it, "They were told that if they worked for me they'd be persona non grata, and that she'd get them jobs.  And she did."  She not only appointed many of her ex-prosecutors as judges, others suddenly got employed by entities where she had influence: CYFD, juvenile detention center, and friendly (Republican) DA's such as Martwick in the 12th.  (I've spoken to someone whom Martinez appointed to a judgeship but who later became a Democrat and worked for D'Antonio, and he told me he changed parties mostly because of conduct toward him by Republicans, though he wouldn't get specific.)  Interestingly, in 2013 Martinez judicial appointees Beverly Singleman and Richard Wellborn became Democrats, and Nelson Goodin (according to Wellborn, though Goodin denies it) thought seriously about switching parties.  That's the same year Dickens switched, but there may be no connection.
Secondly, Dickens's account doesn't sound real credible.  He had written a very negative letter about D'Antonio, and so might have special reason for concern; but if he'd had some interest in staying where he was (rather than undertaking a long daily commute!), wouldn't he have asked D'Antonio about his situation?  D'Antonio certainly hadn't told him he had to leave.  If I had a wife and two or three kids and a community and a church, I'd sure make a quick phone call to D'Antonio if I had the least interest in staying on.  So his account lacks credibility, and is almost internally inconsistent.  (He implied to me, but didn't actually state, that D'Antonio had told him he wouldn't be Chief Deputy; and one has to doubt that ceasing to be Chief Deputy was a deal-breaker, because in going to the 12th J.D. he didn't stay a Chief Deputy either.  He just had a longer commute and a Republican boss.)
Third, more context: reportedly Dickens and the ten others who left did not leave any transfer memos to help their replacements on cases, and had no consultation with attorneys who had to start fresh on old cases.  "They left us high and dry," D'Antonio recalls.  (This is supported by an email inadvertently left behind.)  To me (as a lawyer and as a taxpayer) that's not how things ought to have gone down.  (Dickens says he was careful to leave his case-files in good order.)]
[Anyway, the fact that Dickens made no inquiry, left immediately when all the others did, and went (as they did) somewhere Martinez had influence is pretty suggestive that he had no interest in working under Mr. D'Antonio.
Finally, I believe D'Antonio because although we have our differences and he ain't perfect, I don't think he's lied to me.]
[I do think that when I finally get around to reading the entire file, I'll agree with some of the DASO personnel that jailer Chris Barela should have been prosecuted.  My sense of the situation is that some of what Barela did that appears illegal was time-barred, so that D'Antonio could do nothing; and that other things he did that appear illegal didn't put money in his own pocket but passed county resources to others.  That has a lot less impact on a jury than lining his own pockets would have had, and a savvy prosecutor could reasonably conclude that a conviction in a jury trial would be unlikely.]
[At any rate: D'Antonio (who himself had been a Republican until not long before he ran) took on a hell of a tough challenge in 2012, and prevailed.  Thereafter he stuck to his principles despite some harassment from the Governor's Office.  He's been a good DA, although I think he can improve.  Why would citizens -- particularly Democrats -- want to toss him out for someone who may still be a Martinez loyalist?]
[I should also mention that Dickens is very convincing when he talks about why he switched parties.  While carefully avoiding criticism of Martinez, he discusses his personal learning curve about how important community mental health resources can be.  He also notes that the absolutist "We gotta get rid of all the illegals" view didn't suit him too well, because he knows (and has in his family) immigrants from other countries.  Similarly, the absolutist view articulated by the National Rifle Association troubles him.  He notes that everyone has the Constitutional right to bear arms, and says that's fine, but "there are some simple steps to limit" some of the unnecessary dangers that presents to the public.  He favors prudent steps to keep firearms out of the hands of people who aren't sane -- and he didn't see such steps as inconsistent with the 2nd Amendment.  Talking with him, I wished he was still here, working as a prosecutor under D'Antonio.  He had some good suggestions.  (However, he declined to discuss with me some of his views on social issues, and gave an excuse that didn't sound real valid to me.)  Dickens shouldn't be our next D.A.; but I wish Martinez/Orlando hadn't leaned on some capable and experienced prosecutors to refuse to work with D'Antonio.  D'Antonio's fresh approach and their experience and observations might have yielded an even better four years.]
[Sorry to have gone on at such length; but I've tried to be fair to everyone.]

On Emails and Email Destruction

You'll have read that Amy Orlando, Governor Martinez's hand-picked successor, apparently destroyed emails, erased hard-drives, shredded documents, and tried to undermine successor D.A. Mark D'Antonio's ability to do his job.

Emails were destroyed despite Orlando's (emailed) acknowledgment that “Anything put on computers is property of the State.”

My question is, what's most appalling? Massive destruction of documents and erasure of backup tapes? The appearance that the office and its resources were used improperly to support political campaigns? (Some emails they couldn't destroy concern 2010 Martinez campaign logistics or issues.) Or one of the few emails they couldn't erase? (These are mostly sent emails, which are harder to destroy.)

Certainly the massive destruction matters. So does apparently lying about it. A reporter's IPRA request for emails was met by a claim that they weren't available because the email servers were “routinely cleaned”; but an IT person from the Martinez-Orlando era (supported by other IT folks) admits they were not “routinely cleaned.”

One email attempts to deny the DA's office money it could use prosecuting cases. Orlando asks how much of certain grant money will be left for the office after she leaves. She learns her office has spent about $ 400,000 for 120 cases, and that 70 more cases should yield $200,000 to $300,000. Orlando begs an underling not to let D'Antonio know how to obtain and use the grant money: “Don't leave ANY note about how to do it!! Please.” That suggests her priority isn't us, but her political interest and her childish resentment of D'Antonio. By trying to deny the DA's office grant money, does she mean that if she can't be the D.A., she's on the criminals' side??)

Another email says Martinez wants her inauguration event to be “no Mexican affair!!”

Need more? A financial specialist has to “forget” Martinez's signature on an affidavit related to a hotel bill; Orlando asks underlings to change who has access to her office calendar and lie about it; and (like something out of the East German film “The Lives of Others”) Martinez and Orlando apparently copied and read employees' emails.

Particularly interesting is the Saturday, November 6, 2010 email from Martinez headed “from: Amy Orlando” that starts: “This is Susana. I am sending this email from Amy's BB. I want to make something very clear to all of you. When Amy or Susan [Reidel] gives any of you instructions – they are approved by me. . . [Anyone who's dissatisfied should] call me directly.” That tends to confirm the widespread view that Martinez remained in control of the DA's Office after leaving for Santa Fe. She goes on to ream out employees for “frankly mean emails,” “mean gossip,” and spending too much time emailing and visiting each other's offices. “I hope I have made myself clear,” she closes.

(She's been elected Governor days earlier, yet is still micro-managing the DA's Office here.)

Interestingly, the same email reams people out for failing to decline the Sunland Park case, adding that she has long “known that there was little to no evidence to charge this case. . . There is no reason for this case to linger this long in the office.” What's interesting is that her protege, or some say puppet, soon ramped up an investigation of that case and announced a bunch of very public indictments. Why?

D'Antonio's office investigated the email issue after trying to respond to an IPRA Request for emails – and discovering that the emails had disappeared. D'Antonio did not open a criminal investigation, which could have been a conflict of interest, and he says any such proceedings would be up to the State Attorney General.
                                                   -30-
[Note: this column was published yesterday, Sunday, 28 September in the Las Cruces Sun-News.  Sorry not to post it here Sunday morning, as usual -- and not sure I can post copies of some of the emails, as I'd hoped to do.  May be able to add 'em soon.]

Developments with Subjects of Past Columns

“The more things change, the more they remain the same.” Unfortunately, that's true of many subjects these Sunday columns have touched on.

I wrote in January that Governor Martinez, like NJ Governor Christie, tended to “maintain a personal vindictiveness that doesn't fade as they move up the political ladder.” And “Mark D'Antonio's presence in her old office is like an itch she can't keep from scratching.”

She continues to illustrate my point. Shortly before Independence Day a visitor remarked to D.A. Mark D'Antonio that D'Antonio's office had a great view of the Field of Dreams. A plan emerged to gather there with their families to watch the fireworks.

One evening soon afterward, Doña Ana County Commissioner Dr. David Garcia got a call at home. “Is this Dr. Garcia?” “Yes.” “Is this Commissioner Garcia?” “Yes.” Finally the woman identified herself as “your Governor.” Guv told Garcia of D'Antonio's party plan. He wondered what she wanted him do do. “Shut it down.” “But it's his office.”

Dr. G. obligingly contacted the County Manager, who issued some edict against booze in county offices. (Did the Guv always keep that office alcohol free?) Also no shooting of fireworks from the county building's roof.

Does it get any pettier than trying to prevent a fireworks-watching-party in her former office? Even if D'Antonio had been planning to serve booze, is this what oughtta be keeping our Guv up at night?

In May I wrote that we pay appallingly inadequate compensation to contract public defenders. Constitutionally, the State owes indigents a defense to criminal charges; but at current rates, a contract lawyer must either short-change his client significantly or work many unpaid hours to give that client a defense remotely equal to what a paying client would receive.

What sparked the column was lawyer Gary Mitchell's motion, filed in several criminal cases, demanding the State put up or shut up: since the Constitution says you gotta pay me to defend the accused, either do so or drop your case against him.

Sounded fair. I called Mr. Mitchell Monday to ask whether any court had yet ruled on such a motion. None had. (Judges rule at their own pace.) “Hopefully, we can get a ruling pretty quick,” Mr. Mitchell said.

In 2013 we questioned the mindless rush to spend a bunch of money putting artificial turf on the Field of Dreams. Proponents claimed you could use it for many events; but you can't – unless you cover it with an expensive wooden platform to protect it from spilled drinks and high heels, etc. Sure enough, first big concert – no one could sit on the field, and many had to be unreasonably far from the stage.

Two columns earlier this year concerned the Doña Ana Soil and Water Conservation District bond election, which failed 500-2,859. That's the result I favored; but I wrote that those of us concerned about soil and water conservation shouldn't just nod off and leave this group to spend their time opposing conservation and preservation measures, most of which have little to do with their charge. Concern about local flooding deserves serious attention.

Mea culpa. I just haven't taken the time I'd intended on this. But in writing this column I saw the group was to meet Thursday, August 14, and I resolved to attend.
Quite recently, I wrote of rattlesnakes. A few days later, taking care of a neighbor's place, the wife reached for something near a Russian Sage. Curled under the bush lay a rattler. He lazily stuck out his tongue at her. She thanked him for his serenity and gave him a wide berth thereafter.
                                              -30-
[The column above appeared in the Las Cruces Sun-News today, Sunday, 17 August.]

NM Must Provide Indigents a Fair Defense

New Mexico faces a Constitutional/financial crisis, given pleadings filed in more than a dozen criminal cases.

Poor persons accused of crimes are treated unfairly. U.S. and N.M. Constitutions, court decisions, and statutes say the poor have a right to counsel. If someone can't afford a lawyer, the State must provide one. Courts define “assistance of counsel” as effective assistance of counsel. That should mean a defense as diligent and competent as a paying client would get.

D.A.'s offices get plenty of funding, often screaming “law-and-order” to voters and legislators. Public defenders and contract defense attorneys get paid at rates that would be comical if those rates didn't have tragic consequences for many defendants.

The New Mexico Constitutional amendment removing control of public defenders from the Governor's Office and creating a Public Defender Commission was a great step forward. Voters backed it strongly, and local defense attorney Michael Stout has been an able chairman.

But the work ain't over. Contract public defenders (who defend poor persons in rural areas or when the P.D. has a conflict of interest) get specified amounts for specific classes of cases. Low specified amounts.

How low? $180 for a misdemeanor. Ethical representation requires at least three or four hours for a defendant pleading guilty. Fifty or more hours would be above average, but not unheard of, if a paying defendant chose to fight a misdemeanor charge. (One lawyer told me of spending a week trying game charges against a rancher.) If the necessary work in a contested misdemeanor case took only 20 hours, the attorney would get paid like a McDonald's burger-flipper.

Try $700 for a 1^st degree felony. You could talk the facts over with the client, review the charges and a little discovery, and either interview a few witnesses or do a little legal research, even write a short motion; but then you'd have spent the State's money and be well into spending your own, long before trial. Maybe you should talk the defendant into the plea bargain, even if it sucks.

In short, the defense attorney can fail to represent the client properly or spend a bunch of uncompensated time. Is that fair?

Recently Lincoln County defense attorney Gary Mitchell filed motions demanding that the State and its court system put our money where our mouths are.

His motion requests that the court stay prosecution until the State “makes adequate funds available for the defense.” Since Defendant is entitled to effective assistance of counsel at state expense, the State should fund that assistance or stop the prosecution. Further, he suggests that each case should be dismissed if the State doesn't fund a defense within 30 days. (We also have a U.S. Constitutional right to a speedy trial.)

Sound far-fetched? Courts have “inherent supervisory authority” to do such things. New Mexico courts have already done so with regard to capital crimes. A long term of imprisonment could be worse for some of us than a quick death.

If it happens, D.A.'s around the state will have to let a lot of folks go free in borderline prosecutions – and come up with unbudgeted cash for a proper defense in cases that really should be prosecuted.

Mitchell says he may file such motions in up to 200 cases. Contract public defenders from around New Mexico have asked him for copies, presumably to file similar papers.

None of his motions have yet gone to hearing, but Mitchell sounds guardedly optimistic. “There are numerous courageous district judges in our state who are fully aware of the problem,” he says. So is the Supreme Court.

Stout says, “Many contract public defenders like Gary Mitchell give their all to protect clients. They shouldn't also have to give the shirts off their backs to provide a constitutionally-mandated service.”

While the Commission takes no position on Mitchell's motions, Stout said, “It agrees that the present system for paying contract counsel to represent indigents accused of serious crimes is unsustainable.” The Commission “has learned that the indigent defense system is severely underfunded, even more so than it imagined. The PDC is striving vigorously to improve the system and its funding.” However, it has no budget.

Local D.A. Mark D'Antonio could not be reached for comment.

I'd guess the New Mexico Supreme Court will look favorably on the motions.

Many legislators also understand the problem, but it's not politically convenient to deal with it.

Constitutions and statutory requirements? Criminally accused indigents ain't major campaign contributors. Let's kick the can down the road, until there's a crisis. Then we can stand around on a desert road kicking ourselves for ignoring the oil warning light.

We'll pay more than we should have – and/or release a lot of folks our district attorneys wanted in jail.

And speaking of jail, here's another column update: allegations concerning Detention Center head Chris Barela are finally going before a grand jury, possibly this week.
                                                      -30-

[The foregoing column appeared in this morning's Las Cruces Sun-News, under the slightly unfortunate title, "NM Faces Public Defender Problem."  I don't share what may be a widespread sentiment, that the public defenders are the problem.  As is so often true, we are the problem.]
[Fact is, it was a strange week.  For awhile I thought I was going to write a column updating three issues, each of which deserved a whole column: the situation with legal representation of indigents, discussed above; the revived Barela investigation; and the mysterious disappearance of a judge I'd written about; but since there wasn't a lot to say about the Barela situation and I couldn't quite figure out the situation on the judge, I decided to write the column I wrote, await developments, and keep on investigating the situation involving the judge for a probable column.  (Both  my column on why we needed an independent Public Defender Commission and my earlier column on Barela are available on this blog.)]
[The magistrate judge situation seems kind of wacky right now.  The judge ain't there, other judges are "doing double dockets because he isn't there," lawyers are getting notices that their cases before him are now before other judges, and one source says "he's moved out, lock, stock, and barrel."  A memo went around saying he'd been removed by the NM Supreme Court; but both the NM Supreme Court and the memo's author say there's been no order removing him, and I haven't learned what the memo's author saw that indicated otherwise.  Meanwhile, we don't know; and as one source put it, "I'm pissed off that we don't know.  The public has a right to know."   Wherever he's holed up, the judge, who had been pretty diligent about returning my calls, hasn't responded to several messages during the past ten days.  Something's going on; likely it involves serious allegations and a "confidential" suspension pending determination of them; but for now, we can only wait and hope the authorities will deign to inform us eventually.]
[With regard to the issues discussed in the above column, I'll add an update on the blog when I hear about some judge's reaction to one of Mr. Mitchell's motions to stay.  In my view (and probably his) Mr. Mitchell would also have had standing to bring a suit against the state for declaratory and injunctive relief, based on the impact of the State's misconduct on his own professional work, forcing him to act unprofessionally or volunteer a whole bunch of time taxpayers ought to be paying for.  However, what he did is probably more direct, and protecting his clients more urgent than protecting himself.]

Morning after Election

Jeez, it feels good to be home.

Of course I'm pleased by President Obama's victory.  I felt fairly strongly that he would win, but thought it would be closer.   I did not expect him to win almost all the "battleground" states, and to do so by margins that were almost comfortable. 

I'm also pleased that New Mexico, and particularly Doña Ana County, as expected, gave the national ticket and Martin Heinrich very comfortable margins.

Obama won for three reasons, not including his significant advantage in the "ground game."  I saw a little of that firsthand.  I happened to be at Democratic Headquarters, and past 5 p.m., with the polls closing at 7, people were still doggedly calling voters, urging them to vote, thanking them for voting, or trying to arrange a ride if one was needed.  Not many people; but they were volunteers, not a call center.  They were neighbors and committed advocates, not folks making an hourly wage.  You could hear it in their voices, too.

Obama won, despite a difficult economy, because:
1. People could just not bring themselves to like or trust Mitt Romney;
2. The Republican Party has moved too far to the Right for a changing United States; and
3. People apparently did recall, as the Republicans urged them to forget, which party had contributed mightily to the economy's downfall.

A recent Doonesbury mocked the fact that the Republicans, just four years after Wall Street played a huge role in our financial crash, nominated a Wall Street guy, and at least one analyst on TV emphasized this; but more crucial, though related, was the fact that folks just can't warm up to the guy for more visceral reasons.  All during the Republican Primary Season, when the Republicans played "Anybody But Romney," it was not merely because his record as a governor had been somewhat moderate, but also because people just couldn't warm up to the guy for visceral reasons.  That was related to, but distinguishable from, their distaste for Wall Street guys.  George Bush was a rich guy who never had to work with his hands to make a buck, but people liked him and wanted to believe him.  With Romney as the obvious eventual nominee, Republicans in 2012 went through an almost weekly enthusiasm for an embarrassingly unlikely cast of characters such as Cain, Gingrich, Perry, and Bachmann.   Romney appeared wooden.  His lack of familiarity with the average person's life made for some howlers when he tried to cozy up to working-class folks; and although his handlers had urged him to smile more, he lacked a solid instinct about when to apply that principle, and sometimes smiled like a monkey as he spoke of the suffering of an unemployed single mother with cancer or something.  He didn't have what George Bush, Ronald Reagan, and Bill Clinton had.  With Reagan or Clinton, people felt better listening to him, even if he was uttering something idiotic; with Romney, people felt his brittleness and absence of commitment to anything other than trying to gain the office his revered father had failed to reach.

The Republican lurch to the Right and the changing nature of the country were well-covered in the election  night TV stuff.  It was wonderfully on display in Senate races such as Indiana's and Missouri's, which by all rights Republicans should have won: they chose a Tea Party buffoon in each state, tossing out a respected long-time Senator in Indiana, and each buffoon behaved like one but still figured he could win.  It was also on display in the vast differences in age and ethnicity between the crowds at each party's Presidential Headquarters: Obama's supporters were young, lively, and multi-ethnic; Romney's were almost universally white, mostly middle-aged, and probably included a hgiher percentage of males.  Meanwhile, Maine and Maryland became the first states ever to vote their approval of same-sex marriage, which is anathema to the Republican stalwarts and Romney, Minnesota rejected a constiutional amendment banning gay marriage, and Colorado and Washington legalized recreational marijuana use.    (Sadly, physician-assisted suicide appears to have been defeated in a fairly close election in Massachusetts.  Particularly since my parents' deaths I've had strong feelings that terminally ill folks ought to be able to end their suffering if they choose to do so, as my father did.)

Finally, exit polls confirmed that folks said by wide margins that Bush, not Obama, bore primary responsibility for our poor economy.  To me, the Republican arguments against Obama always sounded like a guy who'd run up $100,000 in credit-card debt while he and his wife had a combined annual income of $80,000, then, after she confiscated his credit cards and insisted on keeping the checkbook, screamed six months later that she hadn't gotten them out of debt.  The Bush Administration was incredibly irresponsible.  Disaster followed.  Obama has made some of the right moves.  That he has not made more of them is partially Republican opposition and partially his own appointment of some "financial experts" of the wrong stripe, and probably also partially a failure of political will.  However, for the most part he's tried reasonable steps and probably saved us from a worse economy than we currently have.  Romney offered nothing except more of the Bush-Cheney policies -- and a mythical "Plan" he couldn't quite define.

Waiting for Romney to concede was tedious but interesting.  It became increasingly obvious not only that he was clinging to unrealistic hopes but that he and his folks had really drunk their own Kool-Aid and believed that his momentum and the poor economy were carrying him to victory.  That happens in campaigns (or in trials, theatre productions, feature film-making, and sports): you're so surrounded by your co-workers / well-wishers / supporters and your "kind of people" that the messages from outside that circle pale by comparison with the palpable enthusiasm your people are bestowing on you.  That Romney didn't understand he was still an underdog these past weeks may also have symbolized his major problem: that the America he sees is an extemely limited one, restricted by his privileged life and narrow world-view.

I'm pleased, but concerned: election night euphoria fades quickly, and the financial cliff hasn't moved.  We're still rushing toward a dangerous place with regard to the deficit, and the Republicans aren't sounding like folks who understand that survival will require compromise by everyone.

A few weeks ago I analyzed in my notebook why I was going to feel a good deal more depressed by a Romney win than I'd been by other presidential elections that had gone the wrong way.  I concluded that one factor was the extremely vicious nature of some contemporary Republican positions and another was Romney's conscienceless ambition.  To me, his combination of passionate ambition and whorish willingness to reinvent himself whenever it might garner a vote or two was a dangerous mix.  Meanwhile Obama was a genuinely competent President who'd started as a community organizer.  Finally, the prospect of spending the rest of my life watching an irretrievably right-wing Supreme Court stifle progress was uninviting. 

For the first time in years, having moved back to Las Cruces, I was also deeply interested in the local races.  I know some of the candidates, I know plenty about almost all of them, and as a columnist I took strong positions on some of the races.  Almost all the races went as I hoped.  In particular, the ones I'd spoken out about went well.   I don't assume or suggest there was any causal connection there, but mention it to explain how I feel.  When I lived in Las Cruces before, a lot of my beliefs weren't too popular.  With changes in the times and the town, Las Cruces has a quite progressive local government and voted quite strongly for Obama and Senator-elect Heinrich -- and even gave Evelyn Madrid Erhard a respectable majority against the incumbent U.S. Congressman.

I had felt particularly strongly about the three judicial races.  Governor Martinez (the former long-time District Attorney here, in case you're reading this outside New Mexico) appointed three cronies as judges here.  One in particular seems a somewhat spiteful sort, and a Tea Party darling; two of the three had lied to or about me; and their three opponents all seemed decent people who had good reputations as lawyers.  Further, the close alliance of Governor-Judges-District Attorney seemed unhealthy.  (A fourth Martinez crony was the District Attorney.)  We were surrounded by "Keep Judge So-and-So" signs, as if to suggest we had elected and expressed affection for the three (of whom one, by the way, seems a very decent sort of fellow).   I wrote a strong column on these races, but was not optimistic.  I didn't have recent experience with elections here, and knew Martinez was extremely popular.  The judicial candidates -- Marci Beyer, Mary Rosner, and Darren Kugler -- all defeated the Martinez "incombents" by several percentage points.

Similarly what I'd heard and seen of Amy Orlando and Mark D'Antonio convinced me that the county would be a lot better off with Mark as D.A.  Still, I feared his optimism might be a product of hearing so much from well-wishers and having far less contact with opponents.  I'd kind of expected to spend some time during the next two years writing columns trying to expose certain problems within the D.A.'s office.  Without getting into details, there was a certain nastiness and heavy-handedness to the Martinez-Orlando campaign to keep Ms. Orlando in office.  Mark is a capable lawyer with a great background for a prosecutor, and will bring a much-needed "breath of fresh air" to the D.A.'s office here. 

Most of the other local races went as I hoped they would too.  In one there's currently a twelve-vote margin, which may or may not survive provisional ballot counting and perhaps a recount.  Particularly because progressive or moderate candidates had been subjected to a barrage of ugly and misleading attacks by a PAC funded by Oil & Gas and run by a Martinez lieutenant, I'm heartened.  I hoped people would see through that garbage and make choices based on candidates and their actual positions; but I had no basis for predicting how these races would come out.

Sadly, but not unexpectedly, one key race turned out badly.  Our Congressional District includes Las Cruces but is weirdly cut to be primarily a Republican one.   Republican U.S. Congressman Steve Pearce is the darling of NMOGA and the Tea Party, but pays little attention to the needs or desires of the rest of his constituency, particularly progressives, environmentalists, and the like.  He doesn't have to.  Thus he's already voting to toss out the Affordable Health Care Act, and has consistently taken many extreme positions.  He'll likely be one of those unreasonable Republicans declining to compromise even to save the country's credit rating and possibility of financial recovery, and he snorts at the very idea that we might be contributing to climate change.

His challenger this time was a lady named Evelyn Madrid Erhard.  She had little political experience and less funding.  It was the classic David-and-Goliath battle, and Goliath was going to win; but Evelyn gave him a tough fight.  She dedicated her life to this race for the better part of a year, spoke energetically and well, and performed well in debates.  A newspaper poll a while back claimed she would win about 35 per cent of the vote.   She carried Doña Ana County and got about 41 per cent of the vote overall.  A fair way to put it would be that she lost in a landslide, but less of a landslide than most people predicted.  She ran heroically.  She deserves our thanks. 

I feel at home in Las Cruces; but it's still a little unsettling to a muckraking journalist to look around and notice that a high percentage of local office-holders are progressive, open-minded, and even environmentally-conscious individuals who also seem not to be motivated primarily by greed or political ambition.  Whom am I going to write about?