Decades worth of warnings about the danger of underfunding public defenders finally came to a climax last month, when a district court judge held Chief Public Defender Bennett Baur in contempt of court after Baur, the agency head, said he could not ethically take a handful of cases in rural New Mexico.

New Mexico’s continued weak budget suggests that the state’s Law Offices of the Public Defender is unlikely to receive more resources any time soon. But according to leading criminal defense attorneys, public defenders were never a priority in the state budget even during better economic times.

The recent flashpoint was when Baur showed up to the 5th Judicial District Court in Lovington to represent Michelle Sosa. Sosa was on probation for a previous aggravated battery conviction and tested positive for methamphetamines. But instead of representing Sosa, Baur filed a notice of unavailability, essentially saying his office could not adequately represent the client. In return, Fifth Judicial District Attorney Dianna Luce filed an emergency petition with the New Mexico Supreme Court to force Baur and his office to take Sosa’s case.

The Supreme Court denied Luce’s petition Thursday, with three of the five justices agreeing the issue was “not ripe for review.”

Now, Luce said her office will wait and see how a district court judge will rule on another case that Baur also withdrew from.

According to Luce’s petition, Baur and his office refused to take more than 200 cases this year.

Luce told NM Political Report she filed her petition earlier this month because a judge hadn’t yet ruled on Sosa’s case in district court. She also cite the constitutional right of a defendant to receive legal representation when unable to afford an attorney.

“My dispute is with [the public defender’s] statutory duty,” Luce told NM Political Report in a phone interview. “They have a statutory duty to represent someone.”

Both Baur and Luce cite the same provision of the U.S. Constitution to argue their respective cases.

In his motion to turn down the probation violation case, Baur said an overworked and underpaid public defender office could not provide adequate representation. Doing so would violate the constitutional rights of the defendant, he argued.

“The current workload of the Lea County Public Defender’s Office is either so excessive or at capacity that if the lawyers continue to take accept new appointments, they will not be able to provide for effective representation to their existing clients and to the newly appointed clients in accordance with constitutional and professional standards,” Baur wrote.

Historically underfunded

Money will be a major topic during the upcoming 2017 legislative session as legislators deal with another bad budget situation. The legal back and forth in Lovington will likely be part of the conversation.

District attorneys from around the state, the public defender’s office and the state’s judicial branch typically tell legislators they are short on cash.

Luce told the Carlsbad Current-Argus earlier this year that her office was facing possible staffing cuts. New Mexico’s Supreme Court Chief Justice also announced internal cost-cutting measures earlier this year.

For public defenders, Baur said, “funding has always been an issue.”

An underfunded public defender’s office shouldn’t come as a surprise given recent initiatives by Gov. Susana Martinez and the Republican-led House to increase penalties for certain crimes.

During the 2016 special session, which was prompted by a need to balance the state’s budget, a group of three prosecutors served as expert witnesses for a bill to bring back the death penalty. During testimony, the prosecutors often lamented that all parts of the judicial system, not just the public defender, are underfunded. Rep. Monica Youngblood, R-Albuquerque, the bill’s sponsor, and her expert witnesses said that the death penalty would not cost the state more money. But she did not address the possible costs the state would incur defending those cases.

The funding disparity between prosecutors and defenders goes back at least until 2003. In then-Gov. Bill Richardson’s first year in office, district attorney’s offices received about 26 percent more funding than the public defender’s office. Thirteen years later, in 2016, that ratio remained the same, even through budget increases for both groups. In the seven years worth of state budgets that NM Political Report reviewed, the difference in appropriations for the two groups hovered around 26 percent, regardless of whether the governor’s seat or the legislature was held by Democrats or Republicans.

Rep. Antonio “Moe” Maestas, D-Albuquerque, has served as both a prosecutor and a defense attorney. Maestas said the public defender’s office won’t ever be funded equally, dollar for dollar, with the district attorneys.

“If the government wants to prosecute somebody they should pay for it,” Maestas said.

But, he said, the state is still responsible for ensuring indigent defendants receive an adequate defense.

Maestas blamed Republican lawmakers and their constant attempts to increase criminal penalties for contributing to an inaccurate public perception of lawyers who defend people charged with crimes.

“They think that the criminal defense attorney is a conspirator to the crime,” Maestas said of the general public.

Leading up to last month’s election, Super PAC Advance New Mexico Now ran a flurry of negative ads and social media attacks against outgoing Senate Majority Leader Michael Sanchez, D-Belen. Several of the attacks referenced his role as a criminal defense attorney. Sen. Lisa Torraco, R-Albuquerque, often publicly raised concerns about the perception of her day job as a defense attorney.

Both lost their reelection bids in November.

Maestas said tough-on-crime campaigns tend to ignore the cost of defending indigent clients.

“Nobody campaigns on fully funding the public defender’s office,” Maestas said.

‘Who wants to defend child molestors?’

Tom Clark has made a name for himself in the legal community for his defense in high-profile criminal cases. Currently, the Santa Fe attorney represents one of the defendants alleged to have killed 10-year-old Victoria Martens. He’s doing that through a contract with the Public Defender’s office. Since Clark is representing Fabian Gonzales on behalf of the public defender, Gonzales will not pay Clark’s usual $300 per hour rate.

Clark cites media coverage of crimes and the overall perception of criminal defense as a reason people like Gonzales deserve a chance in court with adequate representation.

“The best lawyers are necessary for the most hated among us,” Clark said.

Without a robust defense for indigent clients, Clark argued, the whole justice system breaks down.

“If we start picking and choosing who gets a lawyer, we have a caste system,” he said.

Clark also thinks that the public’s negative perception of criminal defense hinders constitutional rights. That perception, Clark said, bleeds into funding conversations in the legislature.

“Who wants to give money to defend child molestors?” Clark said.

Clark’s contract with the public defender covers murder cases and he said he’s never had a problem with getting support from the public defender’s office.

“I’ve never run up on a situation where the public defender denied me resources,” he said.

Still, cases involving lesser crimes don’t pay as well as high-profile murder cases.

“I couldn’t afford just a general felony contract and still thrive,” Clark said.

While district attorneys like Luce often acknowledge both defenders’ and prosecutors’ budgetary constraints, conversations with the Legislature often lead to who does more work and who should be afforded more money.

The public defender’s office, Luce argued, is not based in any one area of the state and should be able to move resources around to accommodate areas in need.

“[The public defender’s office] is not limited to how many attorneys they can put in any given county,” Luce told NM Political Report.

Maestas disagrees.

“It’s not an amorphous agency,” Maestas said. “They don’t have 50 lawyers that live out of a suitcase.”

Still, Luce is quick to point out that public defenders only work with indigent clients and therefore don’t need equal funding as district attorneys.

History of defense for all

The country’s story of publicly-offered defense dates back to before the Revolutionary War.

Six years before the Declaration of Independence was drafted and signed, John Adams, who would later serve as the second President of the United States, defended British soldiers after the infamous Boston Massacre. Adams, borrowing language from a British judge, said justice should favor the innocent before convicting the guilty, a concept that remains a pillar of the United States justice system to this day.

The Sixth Amendment guarantees the right to representation, but it wasn’t until nearly two centuries later that a U.S Supreme Court case set the precedent for mandated indigent defense.

In the 1963 Gideon v. Wainwright ruling, the U.S. Supreme Court said Clarence Earl Gideon was denied his constitutional right to representation when he couldn’t afford a lawyer.

That precedent is exactly why Gary Mitchell, a prominent defense attorney based in Ruidoso, said the state should better fund the public defender’s office.

“They’ve never been Gideon compliant,” Mitchell said of New Mexico.

Mitchell defended death penalty cases in New Mexico before lawmakers repealed the  death penalty law in 2009. He said the public defender’s office has a duty to adequately represent clients and the state has an obligation to fully fund the public defender.

“The bottom line is, the attorney has to perform up to a certain standard,” Mitchell said.

New Mexico is not alone in its struggle to balance the proverbial three-legged legal stool that’s comprised of the courts, prosecution and defense.

More money or fewer cases

Given New Mexico’s current budget crisis, more money for any agency is unlikely.

What could happen, according to Mitchell, is intervention from the state’s high court or even a federal judge.

“District judges can only make so many rulings,” Mitchell said.

In the state of Washington, its supreme court issued specific guidelines on how many cases the public defender’s office can have at any one time.

In 2012, the Washington State Supreme Court issued new standards dictating lawyers in the public defender’s office should not have caseloads of more than 150 felonies. Misdemeanor caseloads, per the ruling, must stay between 300 to 400 depending on specific jurisdictions.

If similar restrictions were used in New Mexico, Baur and his staff would be in violation.

In October, Baur filed a notice of non-availability and cited the workload of both staff and contract attorneys.

Of the four staff attorneys at the Hobbs public defender’s office, Baur wrote that three of them had more than 140 open felony cases–and that the two contract attorneys there had at least 120 open felony cases each.

In New Mexico, the balancing act between Supreme Court mandates and district attorney jurisdictions proved troublesome. Last year, New Mexico justices issued a rule for Bernalillo County that required arraignments within 10 days of an indictment, arrest or filing of criminal information.

The rule came in reaction to a backlog of felony cases in Bernalillo County District Attorney Kari Brandenburg’s office. Brandenburg later criticized the rule and said it resulted in judges dismissing important cases. Brandenburg also told the justices that the mandate created a need for more staff in order to retry dismissed cases.

One long-term solution, according to Baur, is reforming laws to lessen penalties for nonviolent drug offenses and offering treatment for behavioral health issues instead of jail time.

“We can especially look at the things we consider crimes,” Baur said.

In the short-term, Baur said he can only advocate for his clients, who expect legal representation.

“I have an obligation to raise this issue on behalf of the clients we have now,” Baur said.