NM public defender's office unable to accept any more clients

Felony cases have spiked, and now the Hobbs Public Defender says it won’t accept any more clients because it does not have the resources to adequately represent them

By Justin Horwath
The Santa Fe New Mexican

HOBBS, N.M. — Felony cases have spiked amid a struggling economy in the oil patch of Southeastern New Mexico, and now the Hobbs Public Defender says it won’t accept any more clients because it does not have the resources to adequately represent them.

The decision to deny public representation to criminal defendants in Hobbs may just be the beginning of a trend in courthouses where strained budgets have become a way of life because of the state’s budget crisis. Other areas of the state could face the same problem of not having the means to provide lawyers to indigent defendants, said Ben Baur, New Mexico’s chief public defender.

“What we’re saying right now is that ethically we cannot represent people on new cases,” he said Monday. “Right now we’re struggling to handle the ones we have.”

The Hobbs News-Sun reported that the public defender’s office in Hobbs has filed a notice of unavailability of lawyers to represent adult criminal defendants appearing in Magistrate Court. Baur on Monday told The New Mexican he made the decision from Santa Fe “because of the high caseloads and the lack of staff to handle the increased caseloads in Hobbs right now.”

Baur said the decision was not tied to state legislators reducing the public defender’s budget of nearly $44.5 million by another 3 percent. Gov. Susana Martinez has not yet signed that bill, which was approved last week during a special legislative session. If and when she does, public defenders will have less money to represent indigent defendants.

Both the Public Defender’s Office and courts statewide have been the target of cuts by lawmakers and the governor because of a deficit in the last budget year and a projected shortage in the current year. During the special session, the Democratic-controlled Senate passed by a unanimous vote the bill cutting the budget of the public defender, district attorneys and courts. The bill also cleared the House of Representatives, where Republicans are the majority party, in a 36-32 vote.

State Rep. Antonio “Moe” Maestas, D-Albuquerque, who has worked as both a prosecutor and a criminal defense attorney, on Monday said the public defender is one of the most stressed agencies in all of state government. Maestas sponsored the 2012 constitutional amendment that created the Law Offices of the Public Defender as a stand-alone state agency, removing it from the governor’s control. One of his reasons for the change was that the public defender was underfunded because governors are more interested in funding prosecutors’ offices.

Now, because of the state’s budget crisis, indigent defendants in Hobbs may not get a public defender, even though they have a right to counsel under the Sixth Amendment of the U.S. Constitution.

The New Mexico Bar Association requires all lawyers in the state to provide 50 hours of free legal work a year, Maestas said. But criminal defense lawyers are already hitting the limit on pro bono work, he said.

“I think we have a constitutional duty to fully fund the public defender department and it just hasn’t been done,” Maestas said. “Meanwhile, every legislative session there are several dozen crime bills that don’t make the system any more efficient — they just increase penalties so politicians can run for re-election.”

In the special session that ended last week, Republicans in the House of Representatives approved reinstatement of the death penalty, a three-strikes law that would send repeat felons to prison for life, and a bill increasing penalties in deadly cases of child abuse. The Senate declined to hear any of the crime bills, saying it wanted to focus on budget problems. But various legislators will push the crime bills again in January, during the regular legislative session.

In Hobbs, caseloads are projected to increase by 15 percent over the last calendar year, said Baur, the chief public defender.

State law gives judges the authority to appoint private attorneys to represent criminal defendants who cannot afford to hire a lawyer, Baur said.

“They have the authority to appoint attorneys. I don’t know if they have the budget to pay for the attorneys,” he said.

Matthew Coyte, president of the New Mexico Criminal Defense Lawyers Association, said judges in New Mexico do not like appointing attorneys to represent defendants because that money comes from the courts’ already strained budget. The Law Offices of the Public Defender is separate fromthe Administrative Office of the Courts.

“You have to fund the justice system if you want it to work,” Coyte said. “And clearly we have been underfunding criminal defense for decades. And it’s reached a breaking point — not just in Hobbs but throughout the state.”

Coyte said a criminal defense lawyer’s decision to turn down a client is a difficult one.

“But you have an ethical obligation to stop if you can’t continue to be effective,” he said.

In the budget year that ended last June, the Law Offices of the Public Defender had a staff of 406, including 221 attorneys. It also has contracted with 160 private attorneys for more than 70,000 cases annually. Public defender offices are in Santa Fe, Albuquerque, Taos, Aztec, Gallup, Clovis, Portales, Carlsbad, Roswell, Alamogordo, Las Cruces and Hobbs.

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