Article by Kate Wilson
Appeared in The Albuquerque Journal

Sunday, March 11, 2007

Defense Lawyers May Get New Boss
by Kate Wilson
Journal Staff Writer

A bill that would create a commission to oversee the state Public Defender Department— taking control away from the governor— is under consideration at the Roundhouse.
 
Backers of the measure say there's a better chance of getting improved funding and staffing for the Public Defender Department— and reduced case loads for the lawyers who represent indigent defendants— if the operation isn't under the governor.

"Public defense is not a popular issue," said Santa Fe defense attorney Mark Donatelli. "No governor ever got elected on the strength of the public defender acquittal rate. That doesn't get him elected. It's a lot easier to get money for the prosecution. That's what constituents want."

But chief public defender John Bigelow said his boss— Gov. Bill Richardson— has done more than any lobbyist could to bulk up his department's budget.  And a much-anticipated study expected to be completed this summer will give the state an accurate database detailing the current and future needs of the department, Bigelow said.

Overworked defenders

Over the past few years, public defenders, defense lawyers and others have complained about the case loads for public defenders and what they consider an inadequate budget.

In April 2005, then-New Mexico Supreme Court Chief Justice Richard Bosson took up the cause and said that if the state can't come up with a plan to save indigent criminal defense, the system could collapse.
   
Santa Fe public defender Sydney West, in a 2006 motion in a murder case, declared a "case load emergency" in her office, saying public defenders had been assigned as many as 179 felony cases in less than a year's time.

And in another case— after a judge wanted to know why an Edgewood man spent more than three years in jail without his case going to trial— two public defenders testified they had caseloads of 200 cases and 300 cases respectively.

The governor now appoints the chief public defender and approves the department's budget.

House Bill 348, sponsored by Rep. Al Park, D-Albuquerque, would create an 11-member independent commission, appointed by a variety of public officials and groups, to oversee the Public Defender Department.

It was passed March 1 by the House in a 54-8 vote, and it made it through its first Senate committee Friday night. The legislative session ends next Saturday.
   
Homer Robinson, a staff attorney with the New Mexico Center for Law and Poverty, said Park's bill would eliminate what amounts to a conflict of interest for a chief public defender working for the governor.

"Right now the governor appoints the chief, who controls the budget requests of the department," Robinson said.
   
"So what you have is a governor who puts together a crime package; the chief public defender, appointed by the governor, won't speak against it, even if     it has a negative impact on the public defender clients."
   
Robinson said public defenders now can't lobby for "a true need-based budget."

"The district attorneys"— who are independent from the governor and who regularly lobby at the Roundhouse— "can ask for whatever they want. The     public defenders should be advocating for what's best for the department, but can't. They're effectively muzzled."

Bigelow, who has served three terms as chief public defender, scoffed at that assumption.

"Some people would like to have you think that agency heads are muzzled and can't ask for what they need, but that's not true," he said.

Bigelow said his department gets more support being under Richardson's wing than it would under a commission.

"When I have a problem, when I want to get something done, I can go to whoever the governor is and say, 'Can you help me with this?'" Bigelow said.

"The chief public defender is part of an administration; he gets access to the people who are in charge of that administration. If I had a public defender commission, none of those people would have the same avenues of help as the governor's office has."
   
Controversial e-mail

Donatelli has been outspoken in calling for more money for indigent defense. He said recent budget increases for the Public Defender Department are a     long-overdue drop in the bucket.

"After they starve the department they throw a few crumbs at it," he said last week,

Currently, the public defender's office operates on a budget two-thirds that of the district attorneys' association, Robinson said.

The 2007 budget for the Public Defender Department is $36,790,000. The operating budget for district attorneys is $55,473,000.

In 2005, Bigelow sent his employees an e-mail before the legislative session began.

"We support the governor's budget, of which we are a part during the session," it read.

"You should not contact legislators and ask for different or more, regardless of how meritorious you believe your idea or cause should be."

After the American Civil Liberties Union called on Bigelow to retract the e-mail, Bigelow sent his employees a second message saying the public defenders always had the right to contact legislators or other public officials, "so long as it is done on their own time" and that they make clear they don't speak on behalf of the Public Defender Department.

Study under way

Under Park's bill, public defender commission members would be appointed by the governor, the state Supreme Court, the dean of the University of New Mexico law school, the president of the state Bar Association, the speaker of the House, the Senate president pro tem, the Criminal Defense Lawyers Association and the state Juvenile Justice Advisory Committee. There would be seats designated for advocates for the mentally ill, the homeless and ethnic minorities.

Among the commission's duties would be to "exercise independent oversight of the department" and to develop standards for the department's operations including "ethically responsible caseload and workload levels."

Robinson sat in on a recent meeting with Park and Richardson.

 "We just wanted to explain the bill," Robinson said. "It was a pretty good meeting. He (Richardson) said he would consider it."

But John Goldstein, a spokesman for Richardson, said the governor opposes Park's bill.

"It's not clear to us that it will accomplish its objectives to increase support for the public defender's office," Goldstein said.

"This governor has made supporting the office a big priority, increasing funding from $29 million in 2003 to $37 million today. That's about a 25 percent jump. And staffing has increased from 314 to 362 today."

Bigelow has other concerns.

"I'm concerned the committee would interfere or make cumbersome my ability to do my job as an executive," he said. "One thing about a committee structure, it's difficult to get consensus on just about anything."

Bigelow said a thorough study, not a bill, is what's needed.

Bigelow sits on the state's Supreme Court Justice Task Force, which has petitioned for money for a workload measurement study for various parts of the criminal justice system. The Legislature gave the task force $400,000.

The task force hired the National Center for State Courts and the American Prosecutors Research Institute to gather data from every public defender's office, district attorney's office and state courts to create a database.

"Here's what we asked them to do: a study that will tell the judicial system based on objective statistical data what our true resource needs are," Bigelow said, "so we can have a methodology to use when we go ask for money."

The study should do two things, Bigelow said.

"It will show current resource needs, not based on what Bigelow thinks or what some commission thinks, but based on real objective numbers," he said. "And it will give us a formula for determining that in the future and be upgraded.

"So what I'm telling everyone is, 'Relax. Let's wait until we get the results of the study. Let's see how it looks.' ''

The task force hopes to get results of the study by July.

Robinson said he isn't disputing that Richardson has done a lot for the public defender's office.

"This governor has been the best governor we've had in 20 years," he said. "But it's not about this governor, it's about the structure. We can't be dependent on the goodwill of an individual."