December 2, 2016

Chief public defender held in contempt after turning down cases, says office can’t afford it

Years of budget cuts to the state’s Offices of the Public Defender came to a head this week in a rural town in southeast New Mexico.

A judge found New Mexico’s lead public defender in contempt of court earlier this week after his office failed to appear in five cases in a Lovington district court.

District Court Judge Gary Clingman found Chief Public Defender Bennett Baur in contempt on Monday and issued a $5,000 fine after Baur failed to represent clients in five different criminal cases.

Related: Citing ‘resistance’ top Public Defender resigns

The notices of non-appearance, Baur said, stem from a strained public defender’s office.

“We really cannot effectively represent people,” Baur told NM Political Report.

Initially, Baur said, the Law Offices of the Public Defender notified the court they would not appear because their office could not afford to do so. Later, Baur’s office changed tactics and began entering cases then filed motions to withdraw. Some of those withdrawn motions are still awaiting action from the judges in the cases.

Baur’s actions in Lovington come after years of financial woes for the office. The five cases in question range from drunk driving to drug charges.

The public defender, which was once an extension of the Governor’s office, relies on allocations from the state budget, which itself has seen major cuts.

The public defender’s office has often struggled with getting more money from the Legislature to hire adequate staff to fulfill their duty of representing clients who are charged with a crime but cannot afford to hire a defense attorney.

Fifth Judicial District Attorney Dianna Luce, who is the prosecutor in the five cases in question, told NM Political Report the notices of unavailability created more work for her office.

“It’s put a huge amount of work and strain on our office,” Luce said.

Luce said the defender’s office is just one area of government that has seen recent cuts and they seem to be using the tactics in court to make a point.

“This is not about making a statement at all,” Baur insists.

Luce said the defender’s office has an advantage over prosecutors since the public defender’s office has more leeway to move lawyers and case files around the state, while prosecutors are limited to just their area of the state.

“They can control where they put their personnel,” Luce argued.

Baur said while his staff is able to move more freely around the state, his office is already strained, even in metropolitan areas.

“It’s like trying to rearrange deck chairs on the Titanic,” Baur said. “They may think it looks good, but ‘it’s not effective.”

Baur said the decision to file the unavailability motions was his in his capacity as chief public defender, but was a decision backed by his oversight board.

New Mexico Public Defender Commission Chair Michael Stout said Baur and his staff are asked “to do the impossible.”

“It’s like performing surgery on three patients at the same time, or piloting three airplanes at once—it cannot be done,” Stout said in a statement.

Stout said Baur’s actions are justified, given the circumstances.

“The Commission fully supports Chief Baur and his team for taking steps to address excessive caseloads so that constitutional rights are protected for every client,” Stout said.

Luce acknowledged that it is hard to find willing attorneys in rural areas like Lovington, but that Baur’s office should be using staff from Albuquerque to help with caseloads.

“I certainly can speak to the issue that it’s difficult to retain and recruit attorneys in Lea county,” Luce said. “But I think they have another option.”

Baur said his office is looking into more options for streamlining cases but that Lovington is just an example of the problems in the Public Defender’s offices around the state.

“We can’t just rearrange the scarce resources,”Baur said. “We are stressed state wide.”