The Constitution guarantees legal defense, New Mexico barely delivers - Maggie Shepard, Albuquerque Journal - Monday 2/12

The Constitution guarantees legal defense, New Mexico barely delivers
Maggie Shepard, Albuquerque Journal
Monday 2/12


As is usually the case for the first 10 Amendments to the US Constitution, the sacred Bill of Rights, the 6th Amendment is both clear and definitive.

“In all criminal prosecutions,” it says, “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime [was] committed.

In that trial, the Amendment continues, the defendant must “be informed of the nature and cause” of the charges against him or her.  Further, the defendant must “be confronted with the witnesses against him,” have a chance to find “witnesses in his favor, and,” the 6th Amendment concludes, “have the assistance of counsel for his defense.”

You might think the meaning of the Amendment was pretty clear, but it wasn’t till 1963, 175 years after the Constitution was adopted, that the Supreme Court spelled it out in a famous case known as Gideon v. Wainwright … holding that “the assistance of counsel, if desired by a defendant who could not afford to hire counsel, was a fundamental right under the United States Constitution, binding on the states, and essential for a fair trial and due process of law regardless of the circumstances of the case.”

The Justices specifically clarified what previous rulings had muddied, that the right to counsel wasn’t limited to capital cases, or especially serious or complex cases, but applied to all cases.

According to Bennett Baur, the head of the State of New Mexico’s Law Office of the Public Defender, his lawyers must defend any case in which “jail time is a possible sanction and the defendant is poor enough.”  Poor enough in this case means, having a family income of not more than 150% of the Federal Poverty Level, or about $36,000 a year for a family of 4.

Alongside that Constitutional requirement to take every eligible case, there is a conflicting professional requirement.  According to Margaret Strickland, of the New Mexico Criminal Defense Lawyers Association, “When a lawyer cannot give a case the time it needs, including time for reasonable preparation, he or she is ethically required to decline the case.”

And, “If that lawyer does not decline the case, they could be in jeopardy of disciplinary sanction, including possible loss of license, by the New Mexico bar.”

Chief Public Defender Baur noting that conflict, told public defenders in a couple of county offices in southeastern New Mexico, to stop taking cases.  For this, he was held in contempt of court, and when he pressed an appeal to the NM State Supreme Court which our guest today, Maggie Shepard of the Albuquerque Journal reported, the Court “basically told Baur and prosecutors to cross their fingers for more funding this year, to try a bit harder to cooperate, and to come back with more data about cases and workloads should the first two suggestions not resolve the issue.”

As Baur noted, the highest court in the state hadn’t ruled for him, but it hadn’t really ruled against him either.  The ruling was a kind of big judicial shrug…”we hear ya, Ben, but whatcha gonna do.”  

After all, the former Chief Justice Charles Daniels was on record, including in a conversation on HERE & THERE, that budgets for all branches of the state criminal justice system did not enable them to meet State or Federal Constitutional standards for justice.

The bottom lines: in the words of veteran legislator Antonio “Moe” Maestas, “We get the criminal justice system we pay for.”

And in the words of defense lawyer Margaret Strickland, NM defendants get “wrongful convictions and unnecessarily long prison sentences.”



Maggie Shepard, a veteran of Albuquerque journalism, worked for the now-defunct Albuquerque Tribune and now is a reporter and editor at the Albuquerque Journal, where she frequently covers issues pertaining to the courts and criminal justice system.



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