New Mexico’s Supreme Court To Indigent Defense: Drop Dead

June 9, 2016 (Mimesis Law) — When New Mexico’s Supreme Court held the flat-fee, contract based system used for indigent defense attorneys didn’t violate a defendant’s Sixth Amendment rights, many shook their heads in disbelief. The opinion in Kerr v. Parsons is a mixed bag at best. While unanimous in deciding to shaft indigent defendants and their attorneys, one rogue justice used her platform to show problems with indigent defense programs nationwide.

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.

This fiasco of a holding requires a bit of backstory. Currently, New Mexico’s Public Defender’s office gets an appropriation each year for indigent defense funding. If you’re not with the Public Defender, and you want court-appointed work, you have to submit a contract bid called a Request for Proposal (RFP). If the Law Office of the Public Defender (LOPD) deems your bid satisfactory, you get cases and paid at a flat-fee rate for each case.

In 2014, the rates paid to contract counsel in Lincoln County were as follows: $180 per misdemeanor case, $250 per juvenile case, $540 per fourth-degree felony case, $595 per third-degree felony case, $650 per second-degree felony case, and $700 per first degree felony case, as determined by the highest crime charged.

These amounts were “reasonable” to the Legislature in 2014, which appropriated approximately $10.6 million for the LOPD. Apparently someone at the LOPD didn’t see this as adequate to provide competent representation, because for fiscal year 2016 the request totaled “over $96 million,” and asked for an hourly rate compensation for contract counsel at $85 per hour. This didn’t sit well with New Mexico’s elected officials, who responded by giving the LOPD a little over $12.8 million and added in a condition with their generosity.

When making this appropriation the Legislature explicitly provided that “[t]he appropriations to the public defender shall not be used to pay hourly reimbursement rates to contract attorneys.”

Enter Santiago Carillo, and his appointed attorney, Gary Mitchell. Looking at the charges levied against Carillo, one would think him not a nice person. Charged with Criminal Sexual Penetration, Voyeurism, and “drug charges,” Carillo faced several felonies. That meant at the high end, Mitchell would receive $650 for his services, since the highest charge was a second-degree felony. Mitchell, according to the ABA Journal, calculated the total for Carillo’s “competent representation” equated to $3 per hour.

Carrillo didn’t find this appealing, and filed a motion to make the state pay his lawyer for an adequate defense. When that ruling came against him, Carrillo then moved for a declaration that the flat-fee system deprived him of effective counsel. A District Court judge found Carillo’s arguments persuasive and ordered “each and every contractor no less than $85 per hour plus GRT (gross receipts tax) for the attorney and $35.00 an hour plus GRT for staff.” As this order placed the District Court in direct conflict with the legislature, Albuquerque attorney Liane Kerr petitioned the New Mexico Supreme Court for a “writ of superintending control” to resolve the money matter. As the opinion came back unanimous, one wonders if Kerr questions her decision.

In a unanimous opinion penned by Justice Judith Nakamura, the New Mexico Supreme Court held the flat fee payment scheme to contract attorneys was constitutional. They placed the blame for the low fees at the feet of the legislature and the LOPD for setting the contract rates. The New Mexico Supremes blamed the request of over $96 million for 2016 and affirmed the legislature’s ability to attach conditions on the money appropriated. Including that little tidbit about how contract attorneys wouldn’t be paid an hourly rate. Nakamura opined paying Carrillo’s attorney $3 per hour didn’t amount to “ineffective assistance of counsel,” and cited one New Mexico Supreme Court holding where flat fee payments justified the presumption of ineffective assistance as a “one time only” sort of holding because it was “one of the most complex death penalty cases ever tried in New Mexico.”

The New Mexico Supreme Court reversed the District Court’s orders, remanded Carrillo’s case to court for trial, and reminded all parties involved that the best way to effect change was through the legislature. That hasn’t exactly worked well for any state, but it’s good enough for New Mexico to flush its citizens’ Sixth Amendment rights down the toilet. While the ruling stinks for indigent defendants in New Mexico, the special concurrence penned by Justice Barbara Vigil shines a brief light of hope that someone, somewhere, understands the mandate of Gideon.

A “special concurrence” is when a justice agrees with the Court’s disposition, but not the opinion. Justice Vigil’s special concurrence makes her displeasure with her fellow Justices very clear. It’s written almost as a backhanded compliment from the beginning.

The instant appeal highlights a chronic problem that plagues the criminal justice system in New Mexico…[The] District Court’s orders were in direct response to a perceived crisis, fueled by a shortage in human and financial resources available for its work in Lincoln County. And because it is ultimately the duty of the courts to ensure the protection of constitutional rights, the district court took action.

After a quick history lesson on contracts and court appointed attorneys, Justice Vigil drops a bomb, supported by persuasive authority. Systems where attorneys were required to provide representation for low cost or no cost haven’t exactly passed constitutional scrutiny. It could actually amount to a violation of the attorney’s Fifth Amendment rights, since several courts determined failure to provide reasonable compensation amounts to a taking of property.

When the attorney is required to advance expense funds out-of-pocket for an indigent, without full reimbursement, the system violates the Fifth Amendment. Similarly, when an attorney is required to spend an unreasonable amount of time on indigent appointments so that there is genuine and substantial interference with his or her private practice, the system violates the Fifth Amendment.

Vigil then outlines how structural issues with the LOPD and the contract system aren’t unique to New Mexico. In at least one case her concurrence cites, a court found a constitutional violation where attorneys were paid so low and had so many cases that it was “virtually impossible” for any lawyer to provide effective assistance. There’s no constitutional violation at stake here, so Justice Vigil makes it clear they won’t intervene unless they’re presented with one, “either because of unlawful managerial decisions or a lack of resources necessary for providing the effective representation required under our Constitution and statutes.”

Justice Vigil’s closing remarks lay bare the truth of indigent defense. It requires, no matter how much legislators despise it, adequate funding. If you want to keep New Mexicans safe, it comes at a price.

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