NEWS
The Defense Doesn't Rest
By David Alire Garcia

Published: August 22, 2007

Report says public lawyers need a boost.

New Mexico’s public defenders, the lawyers of last resort for the poor, are dramatically understaffed, according to a state-funded study first released last month that only recently has begun making the rounds within the legal community.

Chief Public Defender John Bigelow says he will support the recommendations for increased staffing of his department. File photo

The 2007 Workload Assessment Study recommends that 41 new lawyers as well as 45 additional staff be added to the state’s Public Defender Department just to meet the current caseload.

The recommendations for increased staffing for public defenders was far greater than additional recommended needs for trial court judges or district attorneys.

The workload assessment study was first presented to the Legislative Finance Committee on July 18 at a public hearing in Ruidoso. It is expected to be presented later this fall to the interim Courts, Corrections and Justice Committee before the Legislature convenes early next year. At that time, decisions to adopt the study’s recommendations will be made.

John Bigelow, the current chief public defender, says he’s already advocating for the recommendations.

“It’s my duty to advocate the recommendations of the workload study to both the governor’s office and the Legislature,” he tells SFR. Bigelow notes that he’s required to formally submit his budget recommendation, including new staffing requests, to the Department of Finance and Administration by Sept. 1. The DFA’s budget proposal is generally regarded as the governor’s budget proposal, one that will need to reconciled with the Legislature’s spending priorities.

Bigelow says the study will be “a tool” to persuade both the governor and lawmakers of the need to satisfy “effective assistance of council,” the constitutional standard all lawyers are required to meet on behalf of their clients.

“The bottom line is that the Public Defender Department is under-resourced and needs more attorneys and more staff just to provide adequate service across the state,” Homer Robinson, staff attorney at the New Mexico Center on Law and Poverty, says.

Robinson says he’s not optimistic that additional staff will come through, given the inherently unpopular clientele public defenders represent. He also has argued that the Public Defender Department’s administrative attachment to the executive branch—Bigelow is a political-appointee of Gov. Bill Richardson—creates a conflict of interest. Robinson unsuccessfully
lobbied the Legislature to create an independent public defender commission earlier this year [Outtakes, March 14: “On the Defensive”].

Santa Fe defense lawyer Mark Donatelli is equally pessimistic.

“I’ve been involved in lobbying for public defenders for over 25 years and I’ve never seen funding for them even close to 100 percent,” he says. While the workload study was commissioned “primarily to get the Public Defender Department on par” with the judiciary and the district attorneys, Donatelli thinks the courts will have to eventually force the state’s hand.

“Ultimately, it’s going to take action from the judiciary, like prohibiting public defenders from taking any more cases, before the gap is closed,” Donatelli, a member of the New Mexico Sentencing Commission, says. He says that’s exactly what happened last year in Louisiana.

Former Chief Public Defender Jacquelyn Robins echoes many of the same points made by Robinson and Donatelli. But she emphasizes that public defenders are currently outgunned by prosecutors.

“I question the disparity,” she says. Robins, who served as chief public defender under both Democratic and Republican governors, notes that there are currently 324 assistant district attorneys in the state compared with only 169 public defenders. She estimates that between 85 to 90 percent of those prosecuted by county district attorneys are represented by public defenders.

“I would suggest that the public defender would need more than 41 new lawyers,” she says. “The system just doesn’t work at the present time,” Robins adds.

Robinson, with the New Mexico Center on Law and Poverty, recalls comments made by then-Supreme Court of New Mexico Chief Justice Richard Bosson before the Legislature in 2005.

Asking lawmakers to “dig deep,” Bosson said that “the fiscal needs of the public defender are so dire, their situation seems so hopeless, that many times prosecutions can not go forward due to lack of sufficient personnel.”

Armed with the recommendations and data collected from the new workload study, Robinson believes that Bosson’s words have only been strengthened in the intervening two years.

“What he said then still stands,” he says.



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