“Many people – my defendants in particular – do not believe that justice exists anymore”

From the challenges confronted in the organizations of courts, to the laws behind police officers lying under oath, this thought leader has some deep insight into the judicial system, private and public defense, and attitude towards criminal law in the state of New Mexico, US.

 

You have been practicing in the criminal defence field for a few years now; what has been your biggest challenge so far? How did you overcome this?

My biggest challenge has been the lack of organization among the courts. There is no central docket among the different courts – specifically, between the magistrate court and district court. In Roswell, we were small enough that all the courts were in one building. In Las Cruces, this is no longer true. The attorney has to be flexible and organized. It was a common occurrence that on Mondays in Roswell I could be required to be in two different courts at the same time and frequently more than once on the same day.

We had to work as a team to handle the situations as they arose. I would have detailed notes for other attorneys to use in covering my cases. As a matter of practice, I visited all my clients in the county jails so the client was aware of what was going on with their case. I documented those visits so that I could pass the notes on to other attorneys.

My second challenge has been the lack of the internet connectivity for Public Defenders in the court room. In Roswell, the Assistant District Attorneys has access to the internet in the courtroom. However, the Public Defenders do not. This is not true in Las Cruces which is a welcome change.

I used e-mail and thumb drives whenever possible – especially with jury instructions. I would e-mail the ADA with my proposed jury instruction and have it saved on a thumb drive prior to court. It allowed us to work as a team and use the court’s resources for any necessary changes. This saves time. Internet access should be a requirement in every courthouse. It should be the court’s responsibility to ensure that every attorney has access to the internet in the court room.

A third challenge has been electronic discovery. I have found that the Assistant District Attorneys frequently do not have authority to close a deal. The Public Defender defence attorney has to acquire the entire discovery and then make an offer to the ADA and his superior if necessary – prior to the final pre-trial. Acquiring the entire discovery, downloading it and viewing the CDs takes a lot of time. It takes much longer to watch a video than it does to read a document. As a result, one is never sure that he has the entire discovery.

 

What have been the major turning points in legislation for the Mexican criminal justice system over that time? How have they affected your work?

Recent case law has forced public defenders to act as immigration attorneys. Public Defenders have to fully advise our clients of any and all implications of taking a plea on their immigration status. This often also requires a Spanish translator. I speak Spanish but use the translator due to recent changes in the law. The case law is specific. One cannot be speculative. The public defender must acquire knowledge of the case law. One has to check constantly to see what crimes requires an automatic deportation prior to taking the plea. This is time consuming because immigration laws and regulations are constantly changing and are sometimes retroactive.

There is the philosophical approach of Holistic legal representation. Quite often, my clients either are in bankruptcy proceedings or need to file bankruptcy. Sometimes, their destitute finances are the cause of their crimes. As a Public Defender, all I can do is refer the client to a bankruptcy attorney.

The same is true for social security benefits. Many of the indigent clients that qualify for Public Defender representation are in need of attorneys to assist them to acquire social security benefits.

A true Holistic approach would allow a public defender to open a small business to assist clients with these matters and others like DMV hearings and wills. I was under the impression that Texas allows this, why doesn’t New Mexico?

 

What differences do you find between your role in private practice, and as a public defender?

I believe that the role is the same for private or public representation – effective representation for your clients. I am a Public Defender; however, I have seen that private attorneys struggle with the same problem of the lack of technology available in New Mexico courthouses. Travel time and costs are obstacles that need to be addressed. In my mind, Skype and telephonic court appearances could be and should be made the standard operating procedure as it is in the state of Arizona. The attorneys would welcome the change.

In private practice, the attorneys have to pay their bills. Many private attorneys eventually refuse public defender contracts because it is not economically feasible due to travel costs and the high number of court appearances required in criminal cases. This is easily rectified by management by paying the attorneys more or spending some money to improve connectivity in the court houses. Much of the court communication with the attorneys could be done via e-mail.

I always help out the private bar if and when they need coverage in court or have legal questions. It is common that a private attorney does not have the time to do the proper legal research. The private attorney is consistently on the road. Many private attorneys understand that the Public Defenders deal with certain issues more often than they, and thus have more expertise. Frequently, I receive phone calls from private attorneys especially on DWI and juvenile related issues because I created a 150-slide Power Point attorney education presentation for the Law Office of the Public Defender that is still in use.

• From lobbyists in the State legislature when it is in session. It is very important that legislators hear from the Defense Attorney Bar both public and private.

The Legislature must stay abreast of the issues in the court system. They need feedback as to how the laws are being applied in the courts. The Lobbyists acquire the information by talking with Public Defenders and then pass it on to the legislature. The NMCDLA has a list where an attorney can volunteer to receive phone calls from the legislators.

 

What special difficulties lie in performing the role of a public defender?

Public Defenders have a legal obligation to provide representation for indigent citizens. The state, with the current economic downturn, has less tax money. The Public Defender offices are always short on financing their needs for staff. The needs are:

• Staff to support the Public Defenders is short. Each staff member in the offices that I have worked in is required to do the work of three people. The staff does an excellent job but there is too much work and not enough staff to do it.

• When I served as an assistant District Attorney, each attorney had his own secretary. In most Public Defenders offices, each attorney shares a secretary with a number of other attorneys. This often forces the Public Defender to do their own secretarial work and paralegal work.

• In most Public Defenders offices, each attorney shares the paralegals. The paralegals are often required to do secretarial work.

• In most Public Defender offices, we do not have enough social workers and investigators to do a thorough job. A Public Defenders office may have one of each. In comparison, the District Attorney’s office may have two or three of each position.

Electronic discovery is a step in the right direction. However, it is only as good as the information that is uploaded to its databases and the system that supports it. This means that there is a consistent issue with electronic discovery. The information may have been disclosed to the public defender’s office but this does not always mean that the attorney has access to the discovery or that he has the proper software to view the discovery.

A Public Defender is forced to do multiple jobs in multiple disciplines. A public defender is forced in today’s reduced resource environment to fill multiple roles:

• Counsellor,

• Social worker,

• Absentee parent.

The case is not closed at the entry of the judgment and sentence or order revoking probation. A Public Defender should follow through with the client and assist the client in:

• Getting into rehabs,

• Getting into residential treatment centers or outpatient counselling.

The Public Defender must be flexible in servicing the client – depending on the needs of the client. If this is not done properly, the client often violates his or her probation and a new case is filed.

I provide service to my clients which means:

• More work assisting the client to do what the court has required him or her to do.

• Providing a common sense approach to counselling my clients.

o Listening to the client either via a jail visit or a phone call can really help. It shows that you care. A practical example is to participate Drug Court. It is worth the extra time invested in your clients.

o Filing paperwork for a client to have furlough to attend a family member’s funeral. When the client sees that you care, it is remembered and respected.

In 2016, I was awarded one of the “Top Ten Attorney’s in the State for Customer Satisfaction.”

 

Could the way liability crimes are dealt with be improved? How does the requirement for ‘mens rea’ come into this?

The law should be changed. Zero tolerance laws and no tolerance probation are both extremely problematic. This means that someone who makes a mistake or has an accident is treated the same as the person who fully intended to do a crime. They are not the same types of clients. It removes discretion from the Courts to use judicial discretion in sentencing.

The definition of a crime requires an actus rea and a mens rea. An accident can often be a mistake that has caused harm but does not rise to the level of a crime. No mens rea means that there was no intent so there was no crime. It was just an accident. These laws have changed the definition of a crime which was created in Common Law. The definition of a crime requires a mens rea for a reason. Without a mens rea, it may be just an accident.

 

Do you think the judicial management of prosecutorial discretion could be better? Please explain.

Criminal procedure has inherent teaching methods built into the system. When a case does not survive past motion for directed verdict, then it often should not have gone to trial in the first place. Foulenfont motions serve the same purpose. The act of dismissing a case teaches the Assistant District Attorney that he should not have filed the case or should have dismissed the case prior to trial because the witnesses were not reliable.

In my view, the Judges need to be given the discretion to dismiss more cases at every stage of the system. For instance, the act of charging an individual with a crime is very serious regardless of the nature of the crime. In civil practice, when one files a frivolous law suit, there can be rule 11 sanction filed against the attorney.

The national average is supposedly around 10% for Public Defender victories. It is not uncommon today in New Mexico that Public Defender offices average a 50% to 75% win ratio or higher. This shows that the District Attorney in those jurisdictions have a serious problem. Cases that often should not have been filed and many times should not have made it past the motion for directed verdict are going to jury. I have litigated approximately 150 trials. Over 100 jury trials. My win ratio is extremely high.

A simple procedural change is required by having the Judges control this by requiring that the District Attorney’s office have their witnesses properly served by the final pre-trial. At that point, the District attorney should ‘nolle prosequi’ a case. The Judges cannot require this. However, the Judges can dismiss a case with prejudice if the state’s witnesses have not been properly served, do not show up on the day of trial or prove to be unreliable.

Prosecutors should be given authority to handle their cases. A District Attorney should allow his assistant District Attorneys to make decisions. It some jurisdictions in New Mexico, the assistant District Attorney has no authority to approve counter offers or make the slightest change to their offer. It all has to be approved ahead of time and by a superior. This micromanagement constraint causes major issues at pre-trial. When this happens, the Public Defender should not be blamed. It is a known fact that micromanagement does not work and slows the system down.

 

Is there anything else you would like to add?

The roles of probation and parole need to be revaluated. The probation officers have an immense amount of power. In juvenile court, the merits’ hearings require beyond a reasonable doubt as the burden of proof. Adult probation and parole merits’ hearings should also use beyond a reasonable doubt. Currently, a District Attorney can litigate a new charge the client picks up on probation in a merits hearing under a lower burden of proof then he would if the new charge was filed as a normal cause of action. The client may often also end up with more jail time than he would have gotten otherwise via a violation for the remainder of his probation; which could include any suspended time.

In juvenile court, the use of social workers as psychologists needs to be addressed – Psychological Evaluations should only be used when there is specific need or to fund an out of home placement.

The number of evaluations has sky-rocketed. They are often not evidence based. They also provide the judge with unreliable hearsay, the damage of which cannot be reversed once it on the record. HIPPA laws are sometimes involved but not enforced. A social worker is doing the evaluations. They are not psychologists. The evaluations are not given to the Defense attorneys in sufficient time to get a second evaluation if they disagree with the results. Being handed the evaluation at the sentencing hearing is completely unacceptable, and is also against specific procedural rules. However, criminal procedure is only as good as it is enforced.

Moreover, the reason that this occurs is that evaluations are used entirely too often. The only time they should be used is to fund out of home placement like a residential treatment center. A sentence of probation or a commitment should not require an evaluation. YDDC does their own set of tests once a juvenile arrives at their facility; it is a waste of state resources.

Police Officers Caught Lying Under Oath – When a Police officer is caught lying under oath, why is this police officer not disciplined? The discipline made public and any cases that this police officer is involved seriously suspect?

In some cases, there is a long history of this behaviour with specific officers. These police officers have violated their public duty and need to be terminated from their positions. Honest police officers often welcome the use of cameras. It proves that many do their job exceptionally well. It also promotes professionalism and the concept of protect and serve. This helps public moral and improves the image of the criminal justice system.

Defendants feel tainted by a witness who lies under oath. They never forget it. The whole system suffers. It is a much bigger problem than the general public and the court system recognizes. How often do you hear the term the Justice system? It is now called the legal system because many people – my defendants in particular – do not believe that justice exists anymore.