Judge finds cash-strapped chief public defender in contempt

Chief Public Defender Ben Baur, left, presents his proposed budget for the Law Offices of the Public Defender during a recent legislative finance committee meeting at the Roundhouse. Clyde Mueller/The New Mexican

A Lea County judge this week found the state’s chief public defender in contempt for failing to provide lawyers for indigent defendants and imposed a $1,000 fine in each of five criminal cases in which the cash-strapped Law Offices of the Public Defender failed to enter an appearance.

The judge’s action, described by the state Public Defender Commission chairman in a letter Tuesday, represents the clearest consequence yet of a funding crisis that the agency and the courts have been warning lawmakers about for years as the governor and the Legislature slashed state budgets in the face of declining revenues.

Commission Chairman Michael Stout said in his letter that state District Judge Gary Clingman issued the order during a hearing at which the judge told Chief Public Defender Ben Baur — who appeared by video conference — that he could purge the contempt findings by following his “statutory duties” to represent defendants.

Stout wrote that “Ben and his team are discussing how to respond as they await the written order.”

Reached by phone late Tuesday, Baur said state statute requires the public defender to appear in a case when ordered to do so by a judge, but Baur added that his office also has an “ethical duty” to provide indigent defendants facing jail time with “effective and constitutional representation.”

“We are struggling to do that in Lea County and other places where the caseloads are so high we feel we cannot provide effective assistance in all cases,” he said.

Baur declined to say where else in the state the public defender is having trouble meeting demands. He also declined to answer other questions about the agency’s finances, saying he couldn’t speak to the subject at length on Tuesday but would be willing to discuss it more another time.

“We could be effective with more money or fewer cases,” Baur said, “but there are only so many ethical hours our attorneys have to represent our clients. At some point we can no longer do more with less.”

The sanction comes after the public defender’s office in Hobbs filed a notice of unavailability, saying it does not have enough resources to provide lawyers to represent adult criminal defendants in magistrate court in the far southeast corner of the state.

“What we are saying right now is that ethically we cannot represent people on new cases,” Baur told The New Mexican last month. “Right now we are struggling to handle the ones we have.”

Baur said in October that he made the decision “because of the high caseloads and the lack of staff to handle the increased case loads in Hobbs right now.”

The agency — which was removed from executive branch control and put under a newly created Public Defender Commission in 2013 — has been begging state lawmakers for more money for years. In the last 12 months, those requests have grown more urgent.

During the New Mexico Legislature’s regular session earlier this year, Baur’s predecessor, Jorge Alvarado, sought a budget increase of almost $44 million, a roughly 90 percent hike. But lawmakers, facing sagging money projections in a state heavily dependent on the oil and gas industry and with a governor opposed to new state taxes, granted an increase of only about $654,000 for fiscal year 2017, plus $200,000 in supplemental funding to shore up the office through the end of fiscal 2016 in June.

Alvarado resigned a few months later. In his resignation letter, Alvarado said one reason for leaving was that he and Stout, the commission chairman, did not see eye-to-eye on how to address the financial crisis.

Alvarado wrote that he believed there was some political will among lawmakers to increase the agency’s budget over time, but that Stout had taken an “unveiled approach, to force the [Law Offices of the Public Defender] to run out of money mid-year and to deny representation to some indigent clients in order to create a crisis of constitutional dimension.” He said such a strategy jeopardizes efforts to get more funding and “is far riskier than any Commissioner or Chief should tolerate.”

Stout declined to respond to questions about the letter at the time but said in a written statement: “I did not create a ‘constitutional crisis.’ I simply acknowledged that one already exists. And if it’s not addressed the civil rights of thousands of New Mexicans will go unprotected. … The Commission was not created to keep the status quo or to protect money interests but to use innovative thinking to advance the rights of New Mexicans charged with a crime regardless of their financial standing. This is difficult when everyone in the system understands that indigent defense is never likely to be fully funded. So the resources cannot simply be spread thinner and thinner. The Commission and the Chief must together loudly sound the alarm to protect indigents.”

Contact Phaedra Haywood at 505-986-3068 or phaywood@sfnewmexican.com. Follow her on Twitter at @phaedraann.

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