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Public Defender Commission vetoed

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By Carol A. Clark

Ethical and constitutional problems, as well as a desire to avoid more bureaucracy, are reasons Gov. Bill Richardson cited Friday for vetoing legislation creating a new Public Defender Commission.House Bill 193, enacted during the 30-day legislative session ending Feb. 14, called for a commission that would have had independent oversight of the public defenders department. The governor’s objection is that the bill fails to provide the appropriate limit on the commission to prevent improper interference with the professional operation of the department.“Upon the advice of the chief public defender, I am vetoing the creation of a new bureaucracy – the Public Defender Commission,” said Richardson in a news release. “This new commission creates an unnecessary and unaccountable layer of bureaucracy, which encroaches on the rightful authority of the executive.”The commission would have created an ethical problem, Richardson said, because members of the commission can be non-attorneys. The Rules of Professional Conduct prohibit an attorney like the chief public defender from being directed or regulated by a non-attorney supervisor, and impeding the attorney’s professional judgment.Los Alamos Magistrate Court Judge Pat Casados said Monday that her court interacts with contract public defenders who drive up to Los Alamos to take care of indigent residents who cannot afford an attorney. “The Public Defenders Office is part of their rights and I will tell them how to apply for a public defender,” Casados said. “I have a very good working relationship with the Public Defenders Office and I don’t know what the commission could have done to make things better or worse.”Los Alamos Police Capt. Randy Foster explained in an interview Monday morning that the police interact frequently with the District Attorney’s Office regarding criminal cases, but have little, if any, contact with the Public Defenders Office except possibly when in court. “The creation of a Public Defender Commission, or not, won’t affect us,” Foster said, “We’re going to proceed with our cases either way.”In his executive message to Speaker Ben Lujan and members of the New Mexico House of Representatives, the governor explained it’s the composition and structure of the Public Defender Commission that raises concerns of potential ethical problems within the agency.Originally, the bill prohibited the commission from interfering with the statutory duties of the Chief Public Defender, including the allocation and distribution of resources and the management of personnel, Richardson said. “Unfortunately, this provision was removed by the House Judiciary Committee,” Richardson said. “The commission, therefore, would have independent oversight of the department without the appropriate limit on the commission to prevent improper interference with the professional operation of the department.”A criminal defendant’s right to counsel is guaranteed by the Sixth Amendment of the United States Constitution and Article II, Section 14, of the New Mexico Constitution, Richardson said. “By vetoing this bill, I am protecting this important right,” he said. “As written, House Bill 193 enables the Commission to intrude into areas affecting the Public Defenders’ representation of a criminal defendant and could prevent the Public Defender from providing independent, professional judgments regarding a defendant’s representation. Regardless, this bill creates an unnecessary and unaccountable new bureaucracy that encroaches on executive authority.”The bill is too vague, Richardson said, with respect to the commission’s role in the operations of the department to ensure that improper intrusions will not occur.Casados agreed, saying it was unclear what impact a Public Defenders Commission would have had on her as a judge or on the business conducted in the Los Alamos Magistrate Court.