Amendment would free public defender from chief executive
Should Gov. Susana Martinez, a former prosecutor who wants to reinstate the death penalty in New Mexico, have control over the state public defender department?
No, says state Rep. Antonio Maestas, right, who pressed for a constitutional amendment that will let voters decide this fall whether to make the public defender an independent government agency.
Maestas, a former prosecutor now in private law practice, said all governors advocate being tough on crime. With that political stand, they have a conflict of interest in establishing a zealous, properly funded public defender’s office to protect the rights of the accused, said Maestas, D-Albuquerque.
“We consider 80 to 100 crime bills every year in the Legislature, but we don’t know how their passage would affect the public defender’s office,” Maestas said. He said the agency under the governor is “historically overburdened, underfunded, overstressed.”
Hugh Dangler was the chief public defender of New Mexico when Martinez became governor last year. Dangler said that, as a member of state commission on criminal sentences, he argued against Martinez’s idea of reinstating the death penalty.
Soon after, in February 2011, Martinez fired Dangler as the top public defender. She also removed him and two other members of the sentencing commission who opposed the return of capital punishment.
“I don’t consider it unfair that I was fired by this governor,” said Dangler, right, adding that the executive has the right to pick her administrative team. “The way it came down was unfortunate.”
Martinez, through her press secretary, said Dangler’s claim that he was fired because of a political disagreement over capital punishment is not true.
“He was let go early in the administration, as were many other appointees in agencies throughout government,” said Scott Darnell, Martinez’s spokesman. “It was simply a part of the review of appointments and staffing that continued for most of 2011.”
After firing Dangler, Martinez appointed Jacquie Cooper as chief public defender. Cooper worked in the public defender’s office for more than 20 years and was the head of its mental health division when Martinez elevated her.
Martinez opposes the proposed constitutional amendment to remove the public defender’s office from her control. She says the change is unnecessary.
Martinez, who was district attorney of Dona Ana County for 14 years until her election as governor, understands the need for an appropriate balance in the court system, Darnell said.
“Governor Martinez has always supported a strong public defender system because she knows it leads to cases being heard more efficiently, with each side receiving the representation they deserve,” Darnell said. “Also, we have dramatically reduced vacancy rates in the public defender department, a problem that had previously plagued it.”
State Sen. Michael Sanchez, frequently at odds with Martinez on policy issues, sided with her on this one.
Sanchez, leader of majority Democrats and a defense attorney, called the idea of an independent public defender wrongheaded when Maestas sought legislative approval to get the measure on the ballot.
In an odd political mix, Sanchez joined with Republican senators in trying to keep the measure off the ballot. But the bill carried 26-15, as most Senate Democrats favored separating the public defender from the governor.
In the House of Representatives, the vote was a lopsided 55-13 to send the proposed public defender reform to voters.
The chief public defender has an enormous administrative job, overseeing about 200 lawyers and 200 support staff statewide.
Dangler said governors changing the chief defender after elections is counterproductive, eliminating administrative talent from the office.
“To be fired for political reasons is, in my opinion, fairly stupid. But it’s what we do under this system,” Dangler said.
Still, the greater issue to him, he said, is that an independent public defender is more likely to advocate for his budget needs to make sure justice is served, not denied, in New Mexico.
The right to counsel is in the Constitution, and defense lawyers say the system would work better without a governor overseeing the defense.
“Trying to level the playing field for indigent defendants and their counsel is to me a no-brainer,” Ousama Rasheed, president of the New Mexico Criminal Defense Lawyers Association, wrote to his colleagues. “I know that I have not been shy about my lack of confidence in the current system, especially under the current governor.”
But Maestas said Martinez, a Republican, is no different from other any other governor in wanting to maintain control of the public defender department.
State legislators in 2008 approved a bill to remove the agency from Democratic Gov. Bill Richardson’s control. He vetoed it.
“No governor wants to lose power,” Maestas said. “That is why this time we are taking the issue to the people as a constitutional amendment, so the executive can’t simply veto it.”
Campaigning on the public defender amendment may largely be limited to word of mouth.
But the National Association of Criminal Defense Lawyers in Washington, D.C., has donated $10,000 to New Mexicans for Equal Justice. The Albuquerque-based political organization has established a website and so far is the most vocal proponent of giving the public defender political independence.
Constitutional Amendment 5
It would establish a public defender department as an independent state agency. A commission created by the amendment would appoint the chief public defender, but it “shall not interfere with the discretion or the professional judgment or advocacy of a public defender office...”