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.
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[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.]

A New Political Fashion Here: Musical Chairs

Local Democrats may look closely at some “Democratic” judicial candidates this year.

In December I was told that four past and/or present judicial candidates appointed by Republican Governor Susana Martinez had just become Democrats or were about to switch.

The four are Beverly Singleman; Richard Wellborn, Jacinto Palomino, and Nelson Goodin. Martinez has appointed each to a judicial position here, and has appointed Goodin twice. All but Singleman worked with Martinez in the District Attorney's Office; and three lost judicial elections in 2010 or 2012.

Magistrate Judge Singleman, once a Democrat, then briefly an Independent, is now a Democrat. In April 2012, Martinez appointed Singleman, an Independent. In November 2012, Singleman won an election to retain her seat. (She ran unopposed: two Democrats were disqualified because of the new requirement that a magistrate judge be a lawyer.) She says her switch back to the Democratic Party is unrelated to what others were doing. “I missed some aspects of the Democratic Party, particularly the women’s group,” she said, adding that an Independent must gather many more signatures in a short time to get on the ballot. That's problematic for someone who’s in court all day.

Martinez appointed former Assistant District Attorneys Palomino and Goodin as District Court Judges, and voters rejected both in November 2012. She then appointed Goodin to Magistrate Court in 2013.

Palomino's switch made some sense. I talked with him during the 2012 race. He seemed moderate. I thought he might be fair and impartial. Some lawyers who’d observed him in court confirmed that.

He says he changed parties months ago, fairly soon after going to work for District Attorney Mark D'Antonio last January. D'Antonio, who he said “welcomed me with open arms,” didn't ask him to change parties. Rather, former friends in the Republican Party, angered by his taking a job with D'Antonio, made him feel distinctly unwelcome. Since he could be comfortable as a Democrat, he changed parties.

Palomino declined to discuss just what Republicans said or did after D'Antonio hired him. Goodin remains a Republican and says he has no plan to switch. He denies that he seriously considered switching. Wellborn says that when he told Goodin he was going to meet with County Democratic Chairperson Christy French, Goodin said “You can tell her I'm thinking about it as well.” Goodin declined to confirm that he'd discussed the matter with Wellborn.

Wellborn's case is the most interesting.

Wellborn, an ADA under Martinez, ran and lost as a Republican for a district court judgeship in 2010. Hoping for an appointment to District Court, he failed to get past the Judicial Nominating Committee. The Martinez administration appointed him General Counsel to the Department of Transportation. Then Martinez appointed him Magistrate Judge in October, 2013. By early December he'd become a Democrat.

Wellborn insists his change of parties reflects his beliefs. He says his beliefs have always been more in line with Democrats than with Republicans. He says he became a Republican when he went to work with Martinez in the District Attorney's Office.

When I spoke to him in December, he said all the right things in a pretty convincing manner. He mentioned (not in any way as platform planks) that he'd never voted for a Republican for President, had always supported same-sex marriage and economic equality, and was pro-choice. He also denied discussing the switch with Martinez, and said he hadn't actually spoken to her for years.

Others say Wellborn has always appeared very conservative. They doubt he'd have switched parties without approval from Martinez, who's hired or appointed him to several public positions. They believe he changed parties solely to enhance his chances to win.

Before Wellborn switched, District Court Clerk Norman Osborne was known to be planning to run for the magistrate judgeship. Osborne anticipated that his Republican opponent in the General Election would be Wellborn.

Then Wellborn came to see him at the Clerk's Office and, as an incumbent who was now also a Democratic, suggested Osborne withdraw. Osborne said the incident “took me by surprise” but was “very cordial.”

In December, Wellborn's account of the conversation omitted that he'd suggested Osborne withdraw.

Thereafter, Wellborn reportedly returned with a carrot. Osborne says Wellborn noted the probability that the State would add another Magistrate Judgeship here, and suggested that if Osborne withdrew, “he would put in a good word for me with the Governor.” Osborne found this “a rather strange proposal, for several reasons” – among them that “he's a Democrat and last time I looked, she's a Republican.” Osborne “politely declined,” partly because he was “pretty far along” in gathering signatures and had supporters eager to help with the race.

This week Wellborn confirmed that he'd encouraged Osborne to withdraw, but denied that Osborne's account was accurate. “That's not what I said. I did say, and this is all speculation, that there may be a position opening up. I don't think Norm would disagree that I'm doing a good job. If his first priority is the best interest of the court, it would be a selfless act on his part to withdraw [and seek the next vacancy] and that if he did that, which would show he put the court's interest above his own, then I would likely make a recommendation of him [if/when a vacancy occurred].”

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[This is the 12 January 2014 installment of my Sunday columns that appear in the Las Cruces Sun-News.  It's important to note that nothing in the column is, or should be taken as, an endorsement of any judicial candidate.]
[This was a tough one to edit down to something close to my allotted space in the newspaper.  Wanted to include all pertinent facts, positive and negative, but couldn't -- and wonder now if a lot of that was better left unsaid anyway. 
It's also an example of a column that changed greatly as I looked into the facts.  Initially it seemed a pattern.  And it seemed a distasteful one.   Three former Martinez ADA's, each appointed by her to a judgeship then defeated by the voters in favor of a Democrat, then appointed by her again.  Sounded like some English King appointing a series of Sheriffs of Nottingham, ignoring his subjects' preferences.  And there might be a little truth in that picture.  But Singleman was neither a Martinez ADA nor a Republican, and has never been rejected by the voters; Palomino is no longer a Republican, no longer a pal of Susana's, and not running for anything -- and is a fellow 49ers fan; Wellborn and Goodin are Martinez appointees running for re-election; but Goodin hasn't changed his registration and claims not to have given the idea serious consideration.  All say there was no conversation with Governor Martinez about changing parties to facilitate getting elected.]

[I do want to cover this year's judicial elections fully.   They get short shrift sometimes in news media, partly because judicial ethics don't let the candidates say much that would capture a head-line.  These elections are not about whether or not to wage war or legalize marijuana, they're about who'll run a court fairly, wisely, impartially, efficiently, humanely, courteously, and with some judgment and legal knowledge.  Each candidate says s/he'll do that very, very well, so we naturally agree with both of them.  If either has an opinion on an issue s/he might have to decide, s/he can't say anything about it. 
Too, judicial elections are tricky.  Sure, I'd rather see a judge who's political opinions make at least a little sense to me; but a judge with reasonable political opinions may conduct himself or herself as a complete autocrat in the courtroom, proud to be on the bench and wholly intolerant of legal arguments s/he doesn't approve of, while someone whose political opinions differ from mine can be a humane, careful, courteous, neutral arbiter in the courtroom.   A judge needs to check his or her political opinions at the door treat each case with the same impartiality a good reporter treats stories.  The capacity to do that should be independent of party affiliation.

Several factors complicate assessing judges.  Few see how good or bad a judge is.  First of all, although the law constrains the judge, s/he has rare power, exercised largely out of the public eye -- and a particular decision that incenses us when we read about it in the newspaper may be exactly right when you consider only the facts in evidence and apply the law too it as fairly as possible.  A decision may also be so filled with arcane points of law that most folks won't quite understand the judge's rationale, let alone be able to assess fairly whether or not it was required by rules or judicial precedent.  The judge acts mostly in private.  Few cases are highly newsworthy; when one is, budgets no longer permit a reported to sit through the entire trial; and the newspaper reader, a non-lawyer not present in the courtroom will not always understand why the judge acts as s/he does.   A mayor who was rude, intolerant, and autocratic would be so in public: either s/he'd show those qualities in the council meetings or city employees who experience or observed it would quietly inform a reporter they could trust.  Judges' work is viewed by a small crew of spectators, mostly those interested in the particular case for personal reasons; and lawyers who observe a particular judge won't speak publicly of that judge's conduct.   Speaking up about a bad judge could elicit retaliation against one's client in the next case, and praising one publicly sounds and feels like currying favor.

At the same time, these elections matter.  Once elected, District Court Judges (but not Magistrate Judges) don't have to run again in a regular election.  If we voters make a mistake, it's harder than usual to undo.

I will write further columns on the judicial races -- and invite all the judicial candidates to appear with Keith and me (and each other) on "Speak Up, Las Cruces!" -- which airs at 8-10 each weekday morning on KOBE-AM 1450.]