A. Under the supervision and control of the chief, each district public defender shall administer the operation of the department office within his district.
B. The district public defender or the chief may authorize the representation of a person who is without counsel and who is financially unable to obtain counsel when that person is under investigation for allegedly committing murder or any other felony criminal offense.
C. The district public defender shall represent every person without counsel who is financially unable to obtain counsel and who is charged in any court within the district with any crime that carries a possible sentence of imprisonment. The representation shall begin not later than the time of the initial appearance of the person before any court and shall continue throughout all stages of the proceedings against him, including any appeal, as directed by the chief.
D. The district public defender shall represent any person within the district who is without counsel and who is financially unable to obtain counsel in any state postconviction proceeding.
E. The district public defender shall notify the chief if, for any reason, he is unable to represent a person entitled to his representation, and the chief shall make provision for representation.
F. The district public defender may confer with any person who is not represented by counsel and who is being forcibly detained.
History: 1953 Comp., § 41-22A-10, enacted by Laws 1973, ch. 156, § 10; 2001, ch. 34, § 2.
ANNOTATIONSThe 2001 amendment, effective July 1, 2001, inserted Subsection B and redesignated the remaining subsections accordingly.
No per se conflict of interest exists when post conviction conflict division of public defender department represents individual arguing ineffective assistance of counsel by attorney from department's trial division, but each potential conflict must be reviewed on case-by-case basis, and individual may waive any such conflict by knowingly and intelligently signing waiver after proper advisement. Morales v. Bridgforth, 2004-NMSC-034, 136 N.M. 511, 100 P.3d 668.
Construction with Indigent Defense Act. — The legislature, understanding that courts determine indigence under the Indigent Defense Act (IDA), enacted this section of the Public Defender Act (PDA) intending "every person without counsel who is financially unable to obtain counsel" to include all persons who courts determine are "needy" under the IDA. Therefore, under the administrative system of the PDA and IDA, when a court determines that a defendant is "needy," the defendant is "financially unable to obtain counsel" under the PDA, and thedDepartment "shall represent" the defendant pursuant to this section, assuming the defendant is charged with a crime carrying a possible sentence of imprisonment. State ex rel. Quintana v. Schnedar, 1993-NMSC-033, 115 N.M. 573, 855 P.2d 562.
Standards for determining indigency. — The Indigent Defense Act and the Public Defender Act are consistent as amended: The IDA obligates courts to determine indigence, the PDA directs the department to adopt standards for determining indigence, and other statutes instruct courts to employ those standards. State ex rel. Quintana v. Schnedar, 1993-NMSC-033, 115 N.M. 573, 855 P.2d 562.
Judicial procedure upon claim of conflict of interest by public defender. — If a conflict of interest or other disqualification is claimed to exist under Subsection D (now Subsection E), the court shall: (1) determine whether a conflict of interest or other disqualification of the office of public defender in fact exists, (2) determine whether the conflict or disqualification is local or statewide, (3) if the conflict or disqualification is local, direct the chief public defender to provide a staff attorney or contract attorney from another county or district to represent the indigent, and (4) if the conflict or disqualification extends beyond the county or district, then the court may appoint counsel for the indigent defendant. Richards v. Patton, 1985-NMSC-059, 103 N.M. 14, 702 P.2d 4.
No statutory right to counsel in grand jury proceedings. — Neither the Grand Jury Act nor the Public Defender Act provides a target witness testifying before a grand jury with a right to counsel such that an indictment must be dismissed if counsel is not present and there is no express voluntary, knowing, and intelligent waiver of counsel's presence. State v. Tisthammer, 1998-NMCA-115, 126 N.M. 52, 966 P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d 447.
No blanket authorization to confer with all forcibly detained indigents. — Subsection E (now Subsection F) is not a blanket authorization to confer with all indigent persons who are forcibly detained, but rather authorizes the public defender to confer with a person detained only (1) when that person has evinced a desire to consult with an attorney or have one present during questioning in response to Miranda warnings and law enforcement personnel have asked the defender to do so; (2) when the defender is conducting inquiries into whether the initial appearance has been unnecessarily delayed or attempting to have the person detained brought before the court for such an appearance, and the district court has authorized him to do so; (3) when authorized or directed in other circumstances by a district judge or (4) when defending a criminal charge following the initial appearance. State v. Rascon, 1976-NMSC-016, 89 N.M. 254, 550 P.2d 266.
Information obtained by district public defender's staff must be imputed to him. State v. Valdez, 1980-NMSC-098, 95 N.M. 70, 618 P.2d 1234.
Municipality not required to provide representation. — Although a defendant is entitled to be represented by counsel on the appeal of his conviction to the court of appeals, a municipality is not required to provide for such legal representation because the legislature has set forth a comprehensive plan to furnish counsel to qualified criminal defendants and municipal budgetary restrictions preclude expenditures for items not budgeted. 1981 Op. Att'y Gen. No. 81-04.
Duty to represent indigents in metropolitan court. — The public defender department's scope of representation is limited statutorily to the magistrate and district courts; the legislature has designated the Albuquerque metropolitan court as a magistrate court. Therefore, the public defender department is obligated to represent all indigents in the Albuquerque metropolitan court who are charged with any violation that carries a possible penalty of imprisonment, including city code violations. 1987 Op. Att'y Gen. No. 87-43.
Children allowed counsel prior to court appearance. — Subsection E (now Subsection F) can be used to provide children in detention with counsel at a stage prior to any court appearance and therefore before an attorney can be appointed. 1973 Op. Att'y Gen. No. 73-58.
Law reviews. — For annual survey of New Mexico law relating to evidence, see 12 N.M.L. Rev. 379 (1982).