New Mexico could permit overburdened public defenders to refuse new cases rather than provide inadequate legal representation to poor criminal defendants who face jail time, under proposed rules discussed at a hearing Monday.
The New Mexico Public Defender Commission gathered testimony from local public defenders, national judicial experts and prosecutors as it considers limitations on how much work individual public defenders can shoulder before it becomes unethical to represent more indigent defendants.
The proposed rules for refusing cases would not apply equally to juvenile defendants or other suspects in homicides, violent felonies and sexual offenses.
The state Supreme Court last year declined to intervene on behalf of public defenders who say they are overworked. And attempts since 2016 by defense attorneys to refuse or withdraw from cases in southern New Mexico have been rejected by district judges, despite indications that defenders cannot attend some initial hearings where defendants may plead guilty.
The rules proposal from the Public Defender Commission, which provides oversight to a public defender agency with 220 staff attorneys that is independent from the executive and courts, would use a 2007 study of attorney caseloads to monitor whether public defenders are stretched too thin.
If caseloads trigger a refusal, courts would be left to decide on how to remedy the situation, potentially hiring defense attorneys on their own or even dismissing cases, Commissioner Hugh Dangler said.
Chief Public Defender Bennett Baur reiterated that attorney caseloads often exceed national guidelines, undermining constitutional guarantees to an adequate defense and due process.
He said cases would not be refused under the proposed protocols without first evaluating an attorney’s performance and opportunities to shift financial resources to the busiest courts or judicial districts.
Baur acknowledged the Public Defender Department will receive a nearly 4 percent state funding increase for the fiscal year starting July 1 to help reduce attorney vacancies, but said that won’t immediately bring caseloads under control.
“We appreciate the increase but in a number of our offices our caseloads are two- to three-times national standards,” he said. “Individual clients can’t wait for systemic solutions. We have an ethical obligation.”
Public defenders also are wary that caseloads soon may surge in the Second Judicial District, the state’s busiest, where the district attorney’s office will receive a 24 percent annual spending increase.
Local prosecutors have said the state does not have the authority to refuse legal representation. None attended Monday’s public hearing, but District Attorneys Dianna Luce and John Sugg submitted a letter that strongly criticized efforts to refuse or withdraw defense counsel.
They urged the leaders of the Law Office of the Public Defender to eliminate possible wasteful spending or consider resigning if they cannot figure out how to meet statutory and constitutional obligations.
Morgan Wood, a district defender in Santa Fe, said current levels of staffing and provisions for contract defense attorneys provide only the “veneer of justice” at remote rural jails and courthouses.
Stephen Hanlon, general counsel for the National Association for Public Defense, said the proposed rules for refusing counsel borrow elements of a “judicial triage” pioneered in Missouri to cope with overburdened defense attorneys.
“You have to have a lawyer for the defendant that can actually function,” said Hanlon, who attended Monday’s hearing to testify about defender workload difficulties in other states. “When that doesn’t happen the court is no longer properly constituted.”
A second day of hearings takes place Tuesday in Ruidoso. The Public Defender Commission plans to meet in June to discuss testimony and possible changes to its proposal.