The Downside To A Public Defender’s Principled Position

Orleans Chief Public Defender, Derwyn Bunton, took a chance when he made the painful decision to take no more cases than his lawyers could competently handle.  He was sued by the ACLU for his efforts, but Judge Arthur Hunter made the decision to free unrepresented defendants rather than blame Bunton for the state’s intransigence in funding indigent defense.

New Mexico’s Chief Public Defender Ben Bauer wasn’t so lucky.

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.

Like Bunton, Bauer was faced with Hobson’s Choice. The law was straightforward, that his office would represent any defendant it was ordered to represent. Simple enough to say. Not so simple to execute.

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.

How inadequate was funding? Enough so that Bauer’s predecessor resigned after his budget request was met with a smack in the face.

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.

Not to be overly dramatic, but the net effect is little different than a judge ordering a public defender to sprout wings and fly.  There’s nothing to stop a judge from issuing the order, but chances of feathers popping out remain slim, no matter what the daily vig.

The problem is clear: there is only so much money to hire so many public defenders to handle so many indigent defendants. If the money isn’t there, there isn’t much that can be done about it. You can’t force lawyers to become public defenders without salaries. And you can’t make too few public defenders capable of providing adequate representation to more defendants than they can handle. Maybe the judge should have ordered the day to be 100 hours long, and held a clock in contempt for failing to change its numbers?

In New Mexico, the issue was, as it was for Bunton, how to address this fiscal failure. There is no one involved who doesn’t recognize that the state failed to adequately fund public defense.

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.”

The question of what to do about it, however, is highly controversial, as something has to give in a constitutional crisis. The PD is left to direct his staff to do the best they can. He, together with the commission formed to oversee public defense, can lobby the government, write scathing op-eds, speak to the public and politicians to persuade them that funding is needed to fulfill the constitutional mandate to provide indigent defense.

But this has been going on forever, to no avail. Legislators get no “bang for the buck” by funding indigent defense. No constituent sends them love letters for voting to tax more so the poor are adequately represented. The Chief PD, the commission chair, can shout as loud as they want. It hasn’t produced money. Their heads must hurt something awful from all the banging.

So, Bauer took the nuclear option, the one most painful to anyone who is dedicated to the defense of the indigent.  He had to choose between being complicit in the inadequate funding by sending warm bodies into the courtroom to be part of the dog and pony show of providing the poor with a lawyer, or drawing a line at the ethical duty to provide effective assistance of counsel. Like Bunton, Baur decided he had no choice.

That served to shift Baur’s funding shortfall, and the legislature’s sloughing off their constitutional mandate to fund indigent defense, onto the judge in the courtroom. The judge was on the bench. The defendant was in the dock. The prosecutor was at his table and there was no public defender to be found.  What’s a judge to do?

In Orleans, Judge Hunter put the onus on the state to fulfill its constitutional duty. In Lea County, New Mexico. District Judge Gary Clingman order Ben Baur to sprout wings, and held him in contempt when it didn’t happen.

27 thoughts on “The Downside To A Public Defender’s Principled Position

  1. Jeff Gamso

    Clingman (I knew him slightly at law school – he was a couple of years ahead of me) is simply obeying SCOTUS when he orders wings. As Justice Balls and Strikes explained in Baze v. Rees,

    ” We begin with the principle, settled by Gregg, that capital punishment is constitutional. See 428 U.S., at 177, 96 S.Ct. 2909 (joint opinion of Stewart, Powell, and STEVENS, JJ.). It necessarily follows that there must be a means of carrying it out.”

    Since Bauer wouldn’t violate the Constitution if he sprouts wings, it must be that he can.

    Problem solved.

    1. SHG Post author

      There is lethal injection. The chair. The noose. Or order the Smiths at 239 Main Street to get into a cage fight with the dude and take him out.

      1. Jeff Gamso

        They didn’t say that it was nice or it was easy. They said it’s possible. You gonna argue with the guys in robes.

        And hey, your arithmetic problems are getting harder. They remain constitutional, though, so . . . .

          1. SHG Post author

            Be circumspect when you try to smack someone you don’t know. When it comes to having a spine when arguing before the court, few can match Gamso’s toughness.

  2. Patrick Maupin

    Hunter knows that his preferred satanic ritual requires a warm body in the seat next to the accursed, to act as a mordant and render more permanent the binding spell that is cast to summon the gaolers from the depths of the county edifice by chanting the ancient word “GUILTY.”

    When he cannot properly cast his spell for lack of the mordant, the brooding judge lashes out at his warm-body supplier with a spell calculated to most painfully deflate the wallet. But he misses and the spell hits one of the already empty wallets of the sleeping Public! Will that giant awaken and exact his revenge on the hapless wizard, or merely roll over and go back to sleep? Be sure to tune in next week for the next exciting episode of New Mexico: Canary or Foreign Country?

  3. Matt Huggins

    I do contract work for the NMPD in Albuquerque, which is six hours Northwest of Lea County. My understanding of the problem in Lea County is that they are no longer able to find contractors to take conflict cases. That’s because the contract rates statewide are abysmally low already and because several of the regular long-term contractors in Lea County are no longer available. This is a problem to a varying degree in many of the more isolated parts of the State. For a while they were paying contractors from Albuquerque 2-3 times the normal rate to take cases those outer regions. Realizing they were burning through the budget that way, they stopped offering the extra incentives several months ago and, surprise, we stopped taking those cases. My point is that Bauer and the NMPD have framed this battle very well. They are literally standing there offering money to anyone willing to take these cases on a contract basis and no one is taking them up. That’s the very definition of not having enough money. It’s different than an existing office of defenders suddenly claiming they can no longer do their current jobs with the same amount of funding. The thing about the “nuclear option” is that it has to be used strategically. Hats off to Bauer for setting this up the right way.



    Objectively stated, would it be too simple minded to say that the judge ordered the PD to comply with a specific state statutory command (apparently unlike New Orleans) and imposed a contempt sanction when the PD failed to comply? All the best.




        No. He would become amoebas. The CDL has an amazing ability. The CDL reproduces asexually through a process called binary fission.

        All the best.


    1. John

      Well, there’s a problem when a judge orders a lawyer to violate the professional rules of conduct, for which doing so can result in being disbarred. The rules require that a lawyer NOT take more cases at any one time than they can handle competently.

      There’s also the problem of forcing a lawyer to take so many cases that it is virtually guaranteed that her clients’ God given Constitutional rights will not be protected because she can’t reasonable represent so many people at one time

      You either believe in the rights guaranteed by the Constitution or you don’t.

      1. SHG Post author

        So you didn’t think Judge Kopf understood the basics of the problem and needed you to re-explain it to him?

  5. B. McLeod

    So, impose fines to make the funding worse. Force defenders to resign. I don’t see these steps helping, and ultimately, we really are talking about freeing defendants. Interim coercion may force defenders to be silent for a limited period, but it won’t make the problem go away.

    1. SHG Post author

      Kind of interesting to consider where that fine might come from, but then, even law can be meta if you try hard.

    1. SHG Post author

      I could suggest you click on the link and find out, rather than leave me a comment asking me to tell you, but it would be mean of me. That would be Michael Stout, Chair of the New Mexico Public Defense Commission.

  6. John Barleycorn

    The “Judge”, Judge Gary Clingman, does in fact have a name.

    So does the Lea County DA, Dianna Luce.

    Dianna doesn’t like to roll lucie-goosie even with Gary clinging to contempt straws, so she has asked the New Mexico Supreme Court to order PD office to provide representation.

    Something or another about public defenders upholding their statutory duty within the color spectrum and their obligation to be content and satisfied with  the only green in their lives being the result of their piss mixing with  the courthouse’s blue toilet water.

  7. Billy Bob

    Public Pretender to you, sir! Is there anything else that needs to be said?
    It’s a sad commentary on our judicial system when there are not enough pretenders to handle the docket.
    That tells me something which you law-abiding citizens do not want to hear. This is a crying shame. And we wonder why crime/recidivism keeps going up(?)/down–depending upon who is counting? Like a yo-yo, in the absence of any adult oversight or supervision. It is truly a farce, as mentioned heretofore by yours truly,…
    Maybe the Donald, under Sessions-over-the-top can straighten it out, but we’re not holding our collective breaths.
    It could get worse, but we are optimistic that it will not.

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