Alamogordo District Judge James Waylon Counts made the ruling in a motion brought by well-known criminal defense attorney Gary Mitchell of Ruidoso, who as a contract attorney has become the de facto public defender in Lincoln County. Mitchell submitted documents in the case to show he has been personally subsidizing the defense of clients under a public defender contract.
Counts said such an inequity is likely to undermine the meaning of “effective assistance of counsel.”
“Defendant has shown that the current system of payments to contract public defenders may create a situation wherein criminal defendants may receive inadequate counsel,” Counts’ order said.
His 26-page ruling last week came after a hearing with testimony from Mitchell, contract defense counsel Roger Bargas, public defender contracts administrator Lee Hood and a review of written findings proposed by the defense and the prosecution. The issue arose with a pair of embezzlement cases against a single defendant, but Mitchell submitted virtually identical motions in dozens of other contract cases.
Contractors are now paid a flat fee. An attorney representing a defendant who faces up to 18 years of mandatory prison time in a sex abuse case, for instance, is paid $700, even if the first-degree felony takes two or more years to resolve. The contract schedule allows for payment of $595 for a third-degree felony and $250 for a juvenile case.
A budget proposal would make major changes in the system, but funding is ultimately up to the Legislature.
