The Right to (And Waiver of) A Public Defender in New Mexico

Thanks to television and movies, almost everyone understands that “if you cannot afford an attorney, one will be appointed to you.”  What does this important right really mean and how does it work?

The New Mexico Public Defender’s Department was established in 1973 pursuant to the New Mexico Public Defender Act.  Today, the New Mexico Public Defender Department’s attorneys handle approximately 70,000 cases per year.  The Public Defender provides representation for all criminal cases that carry a possible jail sentence, including juvenile, misdemeanor, and felony cases where the defendant cannot afford private representation.  An indigent individual has a right to attorney from initial pre-charge questioning, through trial and any appeals or other post-conviction proceedings.

New Mexico law affords indigent defendants the right to representation under NMSA 31-16-3.  This right to representation is “to the same extent as a person having his own counsel,” including all services, facilities, investigation, and preparation provided by private counsel.

The public defender must provide counsel from the earliest moment at which a person would be entitled to attorney representation.  This is often a pre-charge custodial interrogation.  Under NMSA 31-15-12, law enforcement officers have the duty to inform the Public Defender’s office if they are forcibly detaining an unrepresented person who is under suspicion of, or being charged with, committing any offense that carries a possible jail sentence.

Individuals are eligible for public representation based on their net income, assets, and Federal Poverty Guidelines.  Key factors considered by the Public Defender and New Mexico courts to determine eligibility include net take-home pay and the number of dependents that an individual has.  Any eligibility decision made by the Public Defender Department regarding eligibility is subject to the court’s review.  If, because of their income, a person is not eligible for free assistance, the Public Defender offers a reimbursement contract that provides representation at a reduced rate based on a sliding scale.

Under NMSA 31-15-12, a judge must inform any unrepresented person appearing in court charged with a crime that carries a possible jail sentence of (1) their right to confer with the public defender and, (2) if eligible, obtain public representation at all stages of the proceeding.  The judge must then continue the hearing until the defendant has had time to confer with the public defender or obtain public or private representation.

The right to counsel can be waived.  However, waiver of public representation has different standards in federal and New Mexico courts.  All waivers must be made “knowingly, voluntarily, and intelligently.”  Under federal law, a person does not need to expressly waive their right to public representation, and waiver can be inferred from a suspect’s conduct.

In New Mexico state courts, a defendant may waive their right to representation for all or only part of the proceedings.   Under New Mexico law any person entitled to representation by the public defender may waive their right to representation, however they must do so in writing and the document must be signed by the district public defender.

The court must then ensure that the defendant waived his right to a public defender with full understanding of his or her rights and of the consequences of waiving representation.  Under NMSA 3-16-6, among the factors the court should consider to determine whether the defendant was fully aware of his rights and consequences are the defendant’s age, familiarity with the English language, education, and complexity of the charges.