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Article by Jeremy Pawloski
Appeared in
The Albuquerque Journal
Sunday,
December 12, 2004
"Advocates Say Poor Are Serving More Time in N.M.
Jails"
By Jeremy Pawloski,
Journal Staff Writer
A third-offense DWI charge against Jay Paine was dropped without
prosecution, but Paine still paid a high price for the arrest— four months in
jail, loss of the van that was Paine's only home and all his personal
possessions.
Paine now lives in a Santa Fe storage locker.
"Now that I'm here, I have no income and I'm broke, homeless and everything
else," Paine said during a recent interview at the storage locker.
Paine said he does odd jobs at the storage facility in return for being able
to stay in a locker.
"I have a couch in (unit) 13," Paine said.
During Paine's lengthy stay in the Santa Fe County jail, his previous home—
a 1986 Ford Econoline van— was impounded and ultimately sold for scrap as the
months passed, according to Santa Fe civil rights attorney Mark Donatelli, who
is checking into Paine's case.
Why couldn't Paine get out of jail before his case was dropped?
Paine, 59, who claims he has a disability from a head injury he sustained in
a car crash, said he did not have access to the $250 in bond money that could
have secured his release.
But Donatelli said Paine could have gotten out of jail while awaiting the
outcome of his case if a public defender had simply had a judge review Paine's
conditions of release.
Gail Evans, senior attorney for the New Mexico Center on Law and
Poverty, said in a recent interview that a defendant who was not indigent
would not have stayed as long in jail as Paine did.
"Basically, he was being held because he's poor," Evans said.
"It's inexcusable that someone stays in a cage for that period of time
simply because they can't come up with $250," Donatelli said.
The DWI charge was dismissed despite the fact that hospital records show
Paine's blood-alcohol level was 0.10 percent— 0.02 percent over the legal
driving limit— after his June 3 arrest during a traffic stop on N.M. 599.
Assistant District Attorney Alfred Creecy confirmed recently that he dismissed
Paine's DWI charge, but he refused to say why.
Fixing system
New Mexico chief public defender John Bigelow said Friday that he has
appointed his chief deputy to launch a full-scale investigation into Paine's
case, to make sure there aren't any other indigent defendants in the same
position.
Bigelow said the point of the investigation is to "fix what happened and
make sure it doesn't happen again."
Hugh Dangler, district defender for the Santa Fe Public Defender's Office,
said recently that there was a problem with vacancies in the Santa Fe office due
to turnover over the summer.
Paine possibly wound up spending more time in jail than he would have had he
been convicted of the DWI. If Paine had been convicted of the third offense DWI,
he would have faced a mandatory 30 days in jail, but a judge also could have
imposed a maximum jail sentence of 364 days.
Evans, Donatelli and others say cases like Paine's show problems in New
Mexico's system for providing legal services to the indigent.
"What we're looking at is systemic, ineffective assistance-of-counsel issues
due to a lack of resources," Evans said during an interview in her Albuquerque
office last week.
Evans would not rule out a lawsuit against the state as one method for
redressing what she contends are the inequities in funding between public
defender departments and district attorney's offices in New Mexico.
"We want to work with the public defender administration to solve these
resource problems," Evans said. "If we can't, we're going to consider all of our
options. And one of them is filing a lawsuit."
"The problem is much deeper than Jay Paine's case," Donatelli said. "For the
past several years, the Public Defender's office has been woefully underfunded."
Earlier this year, Santa Fe District Michael Vigil dismissed a criminal
sexual penetration case against Paul Stock, a defendant who spent three years in
jail without his case ever going to trial.
Vigil said in court that Stock's right to a speedy trial had been violated
and that is why he dismissed that case. In that case, Vigil cited failures by
both Stock's public defender and the case's prosecutor in making sure Stock got
a competency evaluation and that his case went to trial.
Resources needed
Some important people in New Mexico's legal community, including a Supreme
Court justice, agree with Donatelli's assessment that the state's Public
Defender Department does not have the resources it needs.
"The Public Defender Department simply doesn't have enough people," said New
Mexico Supreme Court Justice Richard Bosson during a recent interview in his
chambers. "We all agree on that."
According to Bigelow, the statewide public defender program has a budget of
around $29 million, enough for about 130 staff attorneys who regularly represent
clients in cases and to pay 100 contract attorneys to represent clients.
Bosson said that he is a member of a committee formed by Chief Supreme Court
Justice Petra Maes— the Supreme Court's Criminal Justice Task Force— that is
trying to fund a study of the overall criminal justice system in New Mexico to
identify needs and gaps in resources.
Bosson stressed that making sure the criminal justice system works
efficiently for defendants is important.
"It's in the Constitution. No one is well-served when the system cannot
function in a timely fashion," Bosson said.
Bosson said that members of the criminal justice task force have brought
their issues to Gov. Bill Richardson, and Richardson was receptive to those
overtures.
Bosson said that everyone in New Mexico's legal community agrees, "the
Public Defender's Office is in dire financial straits."
Debating statistics
Gilbert Gallegos, a spokesman for Richardson, said via an e-mail message
that "the Governor is targeting public safety as a priority, and he proposing a
number of new ideas." But he didn't directly address the public defender issue.
According to information collected by Evans, in Santa Fe's First Judicial
District, the District Attorney's Office is currently operating under a
$2,478,776 budget with 24 staff attorneys.
The Santa Fe Public Defender's Office on the other hand, is now operating
under an $810,316 budget and has 12 staff attorneys, according to Evans'
statistics.
In a recent interview, Santa Fe District Attorney Henry Valdez and Victoria
Bransford, director of the Administrative Office of the District Attorneys,
contested Evans' comparisons between the resources for public defenders and
prosecutors. Both said Evans' statistics are inaccurate.
For example, Valdez said Evans' figures don't take into account the number
of contract attorneys employed by the Santa Fe Public Defender's Office. He said
that with those attorneys in the equation, the district attorney and public
defender offices have an equal number of attorneys.
"We don't even know how to address this because there are so many flaws in
the way she did this ad-hoc study," Bransford said.
Valdez also said it is unfair to compare funding and staffing levels of
district attorney's offices and public defender's offices because the offices
perform such different functions and have different caseloads.
"We deal with every case that goes through the door," Valdez said. "Public
defenders only deal with cases that have been charged."
Valdez noted that public defenders only take cases involving indigent
clients, while defendants who can pay hire their own attorneys. District
attorneys must handle all criminal cases.
Valdez and Bransford also shared statistics that show public defenders and
prosecutors make comparable salaries.
Overall, Valdez said, "there's no question that the public defender's office
needs resources. But the way to get more resources is not to compare the public
defender's department to the district attorney's, because the DA's offices are
underfunded, as well."
Bigelow, who chairs the Supreme Court's Criminal Justice Task Force, said
the task force is still working to study staffing levels and resources for the
entire criminal justice system in New Mexico, including public defender
departments, district attorneys' offices and other court departments.
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