Gideon Alert: Without independence, New Mexico PD system in limbo after governor dismisses chief

BY David Carroll on Monday, February 28, 2011 at 12:00 AM

On February 16, 2011, newly elected New Mexico Governor Susana Martinez removed the state’s Chief Public Defender Hugh Dangler from his post, as reported in the Santa Fe Reporter.  New Mexico has a statewide, state-funded indigent defense system that provides services through a combination of staffed public defender offices and contract attorneys. The dismissal of the public defender is expected with the election of a new governor because New Mexico’s chief public defender is appointed by and serves at the pleasure of the governor, rather than through a non-partisan public defense commission as required by national standards including ABA Principle 1. The dismissal in the middle of a legislative session without a replacement, however, “brings questions for the department's ability to advocate for itself.”

New Mexico governors have significant ability to interfere with the provision of the right to counsel. If the governor is not committed to the mission of the agency, the public defense system can become mired in a chronic-underfunding cycle that makes the other ABA Ten Principles entirely unattainable.  The chief public defender and all district level managers are direct appointees of the governor.  If the governor does not wish to allocate additional resources and/or staff to the public defense system, the direct political appointee will realize that his job is at risk if he goes against the wishes of the executive. A chief who stands up for the system is further marginalized because the district chiefs below him similarly know they must support the governor rather than the chief if they want to keep their jobs.  And, since the state public defender is a political appointee – one who will be gone with the next election – there is no impetus for legislators (or indeed staff of the public defender system) to buy into a long-term vision for change and growth. 
Going against the governor appears to be at the root of the sudden dismissal of Dangler. As Dangler reported to the press, New Mexico is in a “very, very bad budget crisis.” Dangler testified before the legislature a week prior to his removal that the public defender department “can’t make it with the budget we’ve been offered by either the [Legislative Finance Committee] or the governor.” He acknowledged that he might not have been dismissed quite so abruptly, had he agreed to support the governor’s proposal. But with a 20% vacancy rate at the department, he could not promise the legislature that a “breakdown” would not occur due to case overload.
Political interference by New Mexico governors, in the form of abruptly dismissing sitting chief public defenders and appointing new ones, has known no party lines. When former Governor Bill Richardson took power in January 2003, his first duty was to “clean house,” removing anyone who was connected with the previous administration. This included not only the chief public defender, but also all of the district defenders.  As reported in The Albuquerque Journal, critics charged at the time that Richardson viewed any and all exempt employee positions in state government as jobs over which he had direct political control and he used those positions to reward campaign contributors with plum jobs. 
In 2008, a broad coalition of organizations came together as the New Mexico Campaign for Justice to support proposed legislation to create an independent public defense commission that would insulate the public defender and the department from politics, consistent with national standards of independence. Rallying around the idea that the right to counsel system in New Mexico is broken primarily due to political interference by each governor’s office, the Campaign bill overwhelmingly and on a bipartisan basis passed the House (58-4) and the Senate (34-2), only to be vetoed when it reached Richardson’s desk.
As confirmed by Santa Fe Crime, Governor Martinez is in no rush to fill the chief public defender position. Her spokesperson confirmed that Dangler was “let go as part of our ongoing process of reviewing boards, commissions, and appointments,” and that they “continue to take applications from interested individuals for all appointee positions on the governor’s website. The selection process for a new chief public defender is underway.” In the interim, the constitutional right to counsel is left hanging in the balance.
Editorial note: The New Mexico scenario is what awaits the citizens of Massachusetts, if Governor Patrick’s plan is enacted to eliminate the commission in that state and make the Chief Public Defender a gubernatorial appointee.

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