Some New Mexico defendants denied public defenders

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ALBUQUERQUE (KRQE) — If you’re arrested in New Mexico, you’re supposed to hear something like this: “If you cannot afford an attorney, one will provided for you.”

It’s a constitutional right.

But what happens if the state can’t afford your legal counsel, either?

According to the Law Offices of the Public Defender, this is what could happen: Starting this week and through June 30, defendants out of custody and eligible for a contract public defender won’t get one.

“By now, you may have heard that we have a projected deficit of approximately $1.75 million for the balance of the current fiscal year,” Chief Public Defender Jorge Alvarado said last week in a letter to New Mexico judges.

The Law Offices of the Public Defender has had a hiring freeze since December, but says staff have been overloaded as a result. The Public Defender’s office used to operate under the authority of the executive branch, but a constitutional amendment placed the office under a separate entity overseen by the New Mexico Public Defender Commission two years ago.

The legislature approved a $1.3 million Special Appropriation to close the gap, but “Unfortunately, on April 9, 2015, Governor Martinez line-item vetoed that appropriation,” Alvarado said.  “We believe there is no other option.”

“This is an agency that has been very irresponsible with its budget and, as a result, overspent its money,” Gov. Susana Martinez told KRQE News 13 through a spokesperson, explaining her reasons for the veto. “The special appropriation would have unnecessarily and unjustifiably just driven that up further.”

Defense attorney Ousama Rasheed says that if the state can’t provide contract public defenders, some criminal cases are likely to get dismissed. Contract public defenders are used in parts of the state that don’t have their own Public Defender’s office. They’re also used to handle overflow cases and conflict of interest cases.

“If people want the justice system to work, this is like taking one wheel off a car: It’s not likely to go,” he said.

The implications are enormous, he added.

“If you’re charged with a crime, you’re constitutionally guaranteed a lawyer if you can’t afford one,” Rasheed said. “It’s a pillar of our society in our Constitution.”

Asked about the constitutional implications of the line-item veto, the Governor’s office pointed the finger at the Law Offices of the Public Defender: “As for disrupting services, that would be reckless and irresponsible; they shouldn’t be allowed to hold the state hostage for their lack of proper budgeting.”

Michael Stout, chair of the Public Defender Commission, points out that both the Senate and House tried to help the situation.

“The hostages are New Mexico’s poor people whose rights are not protected due to decades of inadequate resources,” he said.  “Without a properly funded defense, a case cannot go forward.”

The Law Offices of the Public Defender says it applied for a loan from the state Board of Finance to get through the rest of the fiscal year, but won’t be assigning out-of-custody defendants contract attorneys until they know whether that request will be approved.

Public defenders, as well as contract public defenders, earn little compared to private attorneys. Well-known private attorney Randi McGinn, who was appointed special prosecutor in the James Boyd case, decided to charge $5,400 for the case to make a point. It’s what a contract public defender would be paid for a murder case. “That is outrageous,” McGinn said.

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