PD Bill Wipes Out
Who needs an independent public defender?
By Marisa Demarco
Homer Robinson didn't expect the measure he was lobbying for to get as far as it did. House Bill 193 called for a commission to choose the state's chief public defender, an office that in New Mexico is appointed solely by the governor.
Why would that matter? "The governor is setting crime policy and has crime package bills, which is fine. That's his job," Robinson says. "He shouldn't have his thumb on both ends of the scale."
With the bill, the governor would have had one appointee on the 11-person commission charged with vetting and selecting the chief public defender. Public defenders handle 90 percent of criminal defense work in New Mexico, Robinson says.
In spite of the brief 30-day session and a Senate majority leader who wasn't a fan of the proposal, the measure passed the House and the Senate, leaving one last barrier before it became a law—it needed the governor's signature. Gov. Richardson on Feb. 29 vetoed the public defender bill, saying in his veto message it "creates an unnecessary and unaccountable new bureaucracy that encroaches on executive authority."
Robinson was the project coordinator for the New Mexico Coalition for Justice, a group that was created a few years ago with the purpose of making the public defender "independent and better resourced," Robinson says. The coalition is made up of 21 organizations from New Mexico and prominent state legal figures. Robinson drafted the measure using models from other states.
Beyond the theoretical, Robinson says the ethical problem posed by having the governor appoint the chief public defender can have real consequences. For instance, says Robinson, can a public defender feel totally comfortable writing appeals that are critical of the governor's DWI policy?
Additionally, says Robinson, a chief public defender is also responsible for proposing and giving opinions on criminal justice legislation. A public defender should be concerned only with representing the people they are defending, he says, not what political ramifications the attorney might face if they oppose overly stringent criminal legislation.
"Every time a criminal bill comes up in front of the Legislature and there's a hearing on it, the room's filled with DAs, cops, Department of Public Safety and other law enforcement officials," Robinson says. "All of them give the law enforcement perspective, but there's no institutional representation on the defense side."
The Alibi called the Governor's Office for response and was told to refer to the veto message attached to the measure. In it, Gov. Richardson writes he vetoed the bill in part because of advice from Chief Public Defender John Bigelow.
Part of the concern, according to the veto message, is that the bill originally stopped the would-be commission from interfering with "the allocation and distribution of resources and the management of personnel." But the measure was amended in the House Judiciary Committee, and that provision was lopped off.
The bill passed the house 58-4 and the Senate 34-2. Though Robinson was unsurprised by the governor's veto, he says he'll just bring the measure back next session.
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