Public defenders address caseload
Office proposes protocol to determine when to decline to take new cases
The state Law Offices of the Public Defender is trying a new tactic in its effort to address what it says is a crisis of overloaded attorneys being unable to adequately defend their clients.
It’s similar to an approach tried in late 2016 when Chief Public Defender Ben Baur instructed defenders in several southern counties to decline to take on new cases and was ultimately held in contempt of court.
This time, the LOPD’s oversight entity, the Public Defender Commission, is proposing a statewide “interim case refusal protocol” that would guide Baur and district offices in how to refuse additional cases when they reach a certain caseload level.
The office is holding two public meetings this week to gather comment on the protocol.
“We want people to know we aren’t making up a crisis,” Baur said.
He said almost all of the public defenders in the
state are handling more cases than they should be based on national standards of no more than 150 felony cases annually. That caseload requires more time and attention than the advised annual load of 400 misdemeanor cases.
The protocol requires each public defender office — 13 in the state employing more than 220 attorneys and contracting with about 160 private attorneys — to continue keeping records of the case assignments per year for each attorney, including the nature of the charges. Each attorney would track all work time.
The caseload record would be reviewed by the LOPD chief quarterly. After three months of consistently high caseloads, based on national standards, the chief would then examine the work time logs and decide if the affected attorney is ethically able to take on new clients. If not, the chief would file a “Notice of Case Refusal” and instruct the attorney to decline to take on new cases until the caseload drops and is re-evaluated.
Baur and commission Chairman Tom Clear, a private attorney in Albuquerque, aren’t sure how the proposal will be received. But they hope the streamlined and data-driven approach to declining cases will help the LOPD garner support for either reducing caseloads by more selective prosecution or increasing the number of public defenders.
Or it could provide a clearer plan to move resources, Clear said.
“I don’t know if it’s (about how) judges respond as much as it is so that we’re able to really evaluate the conditions on the ground and then we are able to say if it’s feasible to move resources,” Clear said.
But moving resources isn’t a permanent solution, Baur has said.
And in the proposed protocol, “mechanisms to resolve this statewide problem by other means, including by filing motions to withdraw in individual cases or working through local Criminal Justice Coordinating Councils, have proven inadequate” for the problem, too.
Prosecutors in southern New Mexico who opposed Baur’s initial attempt to decline cases say public defenders, at least in their districts, are exaggerating how
busy they are and aren’t any more overwhelmed than prosecutors.
After Baur’s first try at declining cases in Lea and Lincoln counties in late 2016 and early 2017, the controversy rose to the state Supreme Court.
There, prosecutors asked the court to block the LOPD effort to decline cases. Public defenders asked the court to force judges to accept their motions to decline cases and/or to appoint a special overseer to help solve the problem.
Justices questioned prosecutors on their use of discretion in which cases to charge and public defenders in what steps they and the Public Defender Commission took before Baur authorized declining cases.
Tom Clark, head of the commission, told the Journal recently that the justices’ questioning was part of the motivation for creating the statewide protocol.
“What we found was there was no protocol in place for when and how and if we should decline cases because of caseload limits and not being able to provide any meaningful representation for our clients because there are just too many of them,” Clear said.
The Supreme Court declined the LOPD’s requests, but it didn’t say its problem wasn’t real or worth addressing, Baur said.
His office regrouped and vowed to keep fighting the overload.
Clear said he hopes many people show up or submit comments on the proposed protocol, which the commission plans to amend, block or approve on a “short time frame.”