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.
                                             -30-

[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.]


 

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.]

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 12^th 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 12^th District regarding appointment of counsel for defendants in criminal cases.” (The same crisis would appear to exist here in the 3^rd 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.

                                            -30-

[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.]

An Exceptional Judge?

Whom should the Democrats nominate to run in November for the new judicial position, with a half-criminal and half-civil docket?

The Judicial Nominating Commission considered nine strong candidates, sending four names up to Governor Lujan-Grisham. She, with General Counsel Matt Garcia, interviewed all four and nominated local lawyer Casey Fitch, who will serve at least until year’s end.

November’s election will decide who holds the position after that. The Governor selected Fitch; but former Magistrate Judge Richard Jacquez, whom she also interviewed, is contesting the Democratic nomination. Doña Ana County members of the State Central Committee will choose a nominee next week.

Many say the Governor’s selection should end the discussion. She’s a Democrat, and carefully vetted the choices. No one alleges anything improper about the process. In urging Democrats to nominate Fitch, the Governor noted, “Judge Fitch is a native New Mexican, with extensive experience in civil and criminal law and is an excellent public servant with an exemplary record as a lawyer and as a judge,” adding, “Our nominee must have an impeccable record, a proven record of public service, and a dedication to justice. Judge Fitch exceeds all of these criteria.

However, anyone has the legal and ethical right to seek a judicial nomination in the primary – or, where the primary is over, through the Central Committee, as Mr. Jacquez is doing.

These interviews were careful, and a far cry from the “How much did you give the Party this year?” sort we’ve heard allegations about. The Governor participated; and Garcia asked challenging “lawyer questions.”

I’ve talked to Fitch and Jacquez. I suspect either would be a reasonably good judge. I believe I saw, talking to Mr. Fitch, why the Governor chose him. I think they saw in Fitch a uniquely judicial temperament and recognized that he has an unusually broad range of experience, including a Ninth Circuit clerkship after law school. (Those hard-to-get positions give the holder a wide-ranging and intense introduction to deciding tough cases at a high-level. U.S. Circuit Courts of Appeal are the last appellate stop before the Supreme Court. They referee battles between some of the nation’s best lawyers.)

Interestingly, each candidate had a DWI conviction in his youth. Jacquez also had an ethics issue in 2004, when he was “informally admonished” for not providing defense counsel with significant evidence. The defendant was a cop. Deputy City Attorney Jacquez and defense counsel interviewed the arresting officer; later, days before trial, Jacquez provided defense counsel with a video of that officer talking about whether or not the defendant was drunk. The Judge reamed him out, and the Disciplinary Board said Jacquez should have produced the video before the interview.

If I were defense counsel, I’d sure want that video before interviewing the witness; but this was 16 years ago, Jacquez was a young lawyer caught in a political situation, and I think he learned from it. Lawyers commenting on Jacquez as Magistrate Judge say he did well, and ran a good courtroom.

Jacquez may want too intensely to be a judge. In 2018, he passed on seeking re-election to Magistrate Court for an unsuccessful primary run for District Judge; and in 2019 he unsuccessfully challenged Joy Goldbaum for Las Cruces Municipal Judge.

I hope the DCC chooses Fitch. I wouldn’t mind seeing Jacquez win some other judicial election; but I agree with the Governor that Fitch could be an especially good judge.

                                              – 30 --

 

[The above column appeared this morning, Sunday, 9 August 2020, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  A related radio commentary will air on KRWG and on KTAL 101.5 FM (https://www.lccommunityradio.org/) during the week, and will be available on demand on KRWG's site.]

 [For two weeks, researching this column, I had wanted to watch the Judicial Nominating Commission's "virtual" meeting in which Commissioners interviewed candidates.  A terrible computer wipeout at UNM, followed by a positive COVID-19 case at the relevant department, delayed the process, but they finally got me the link right after I sent in the column Friday.   I watched the interviews with Casey and Richard.  Doing so tended to confirm what I'd already learned or figured out: Richard was a viable candidate, and sounded a whole lot better than one other candidate of whose interview I heard a portion; but Casey was a far stronger one.  And the video helped me put my finger more clearly on why:

Casey Fitch brings to the table a wider and more applicable set of qualities and experiences.  He has clerked for a federal judge, a 9th Circuit judge, and now for three years the U.S. Magistrate here.  As Justice Miles Hannisee says in the JNC interview, 9th Circuit clerkships are plum positions that many strong candidates seek. They’re a unique boot camp for top lawyers; and I knew many who delayed big bucks from big law firms to spend a year or two clerking.  Casey’s writing sample is not just well-written, but shows a level of complexity we don't see in Richard's.  They’ve dealt with different kinds of cases. Casey has seen a varied and complex set of civil and criminal cases, heard them well or poorly argued, and written decisions, or drafts of decisions, that serve as precedent to lower courts.  Decisions that will be read not just by Joe and Mary, or the local fence company and its former employee, but by top lawyers later litigating similar cases and trying to assess their chances and decide how best to argue to the 9th Circuit.  No, he wasn't a judge, and the sometimes the written opinions that ultimately went out were often much changed; Casey thought them out, researched and analyzed the cases contesting attorneys cited, and wrote them, and likely some of them were published with little change from his draft.  He was integrally involved in deciding cases and helping the court write decisions that are precedents U.S. district courts must follow.

As a lawyer, he also had some experience as a criminal prosecutor and as a public defender, as well as a lot of defense work in civil cases and a bit of plaintiffs' work.   Since the new job is half criminal and half civil, with potentially a bit of family law thrown in, having done at least some work in all those areas is a plus, as is the fact that he dealt with all of them in helping judges decide cases and write opinions.

What I also saw in the hearing, and had been struggling to put my finger on when we talked, is what I would call genuine humility.  A JNC commissioner had noted that Casey brought up his DWI as the start of changing his life, and the JNC commissioner thought that would enhance Casey's ability to empathize with addicts and people in rough situations.  In the Commission interview, he says it was "an opportunity for self-reflection and the start of a program of recovery."  He has also been a foreigner trying to make himself understood: he spent two years in the Peace Corps in Bulgaria, and he mentioned having learned German and Bulgarian -- not as gold stars on his report card but because of the "open-mindedness that goes along with a different culture."  Being the foreigner often teaches one a kind of humility (and identification with folks who wander into a court feeling confused and intimidated by the legalese) that comes from not being able to make your needs or ideas understood by the surrounding majority.  (He is proficient but not fluent in Spanish, being married to a woman from Juarez, and says he can converse well with his mother-in-law, who has no English.)  I realized that a lot of his answers to the JNC were candid and self-deprecating, when they could have been more self-serving. 

Sorry if I've run on a bit.  I've no idea how the central committee members will view all this.  Few are lawyers.  What I hope I've said (and what they might see if they take the time to watch the JNC interviews at https://www.mediafire.com/file/vhshk7azonjneiw/file) is that while Judge Jacquez is certainly a reasonable candidate for the job, there's reason to be excited about Judge Fitch in this position.  Some will feel they'd prefer a Hispanic candidate who grew up in Chamberino to an Anglo who grew up in Socorro.  So would I, all things being equal.  Some will complain that Casey has not paid his dues, politically; but this is a judicial position; and it is not as if Casey were a Republican, or held rightwing views.  He just hasn't been much involved in politics.  

Bottom line: this is an important position; this district judge will affect a lot of people's lives, some deeply.  Reasonable people could differ on which candidate to support; but I hope committee members who are in doubt will either educate themselves more fully on the candidates' objective qualifications, by reading their applications and watching the JNC interviews, or else concede that Lujan-Grisham and Garcia (and I, for whatever that might be worth) have taken that deeper look and concluded that Casey should be the new judge.