The state agency that provides legal representation for indigent defendants is drastically understaffed, according to a recently released study which says the Law Offices of the Public Defender needs 67 percent more lawyers that it has to provide “reasonably effective assistance of counsel” as guaranteed by the U.S. Constitution. That’s 602 more attorneys — more than double the 295 the agency currently has.
“It frightening,” Public Defender Commission Chairman Thomas J. Clear III told House Appropriations and Finance Committee members Friday. “I have warned it is a problem that is going to cost this state a lot of money, and this report verifies it. “I applaud our attorneys …[who] handle these cases, but quite frankly, the defendants aren’t receiving any kind of quality representation systemically,” he added. Completed by the American Bar Association Standing Committee on Legal Aid and Indigent Defense, the study is an outgrowth of a 2016 crisis within the state agency.
The New Mexico Supreme Court ruled Thursday that flat-fee rates paid by the state’s Public Defender’s office to contract attorneys in criminal cases does not violate an indigent person’s right to effective counsel as guaranteed by the U.S. Constitution. The unanimous ruling vacated a lower court order that the Law Office of the Public Defender pay a minimum of $85 an hour to attorneys in criminal cases for indigent clients, and it affirmed the state Legislature’s decree that the Public Defender not pay contract attorneys an hourly rate, but rather a flat-fee rate. “We find no basis to presume that any indigent defendant currently represented by contract counsel necessarily receives constitutionally deficient assistance,” the court’s opinion said. “We assume that attorneys represent their clients honorably, consistent with both their professional duties and the terms under which they contract with the LOPD to provide indigent defense.”
The opinion rose out of criminal cases in Lincoln County in 2012 and 2014 against Santiago Carrillo, who was charged with voyeurism, possession of drug paraphernalia and criminal sexual penetration. He filed a motion asking a judge to order the LOPD to pay his contract attorney, Gary Mitchell, $85 an hour.
In a report to an interim legislative committee, the New Mexico Law Offices of the Public Defender told lawmakers the situation for public defenders in the state is getting better, but that they still need more funding. Chief Public Defender Jorge Alvarado told the Legislative Finance Committee on Friday that his office is on its way to filling 33 staff attorney positions this year, but that contract counsel is still a problem. In his presentation, Alvarado said his office is struggling to maintain an adequate amount of contract attorneys to defend cases in rural parts of the state. He added that even with a standard of having “a heartbeat and a bar card” for contract attorneys, low flat rates for contracts makes it hard to attract lawyers. The Law Offices of the Public Defender has long advocated for hourly rates over flat fees in order to properly defend clients in court.