Being a former prosecutor should not disqualify one from serving on the Public Defender Commission

Recently, Governor Susana Martinez’s appointment of former district judge, and former prosecutor, Susan Riedel to the New Mexico Public Defender Commission has generated some controversy. Critics of the appointment have made two arguments — first, that Ms. Riedel is not qualified under the statute, and second, that it’s somehow inappropriate for a former prosecutor to serve on the Commission.  The first criticism may or may not have merit, but the second criticism is unfair and illogical.

The first criticism, apparently made by state representatives Gail Chasey and Moe Maestas — according to this story by Scott Sandlin in the Albuquerque Journal — is that Ms. Riedel does not qualify under the statute, NMSA 1978, § 31-15-3.2(A), which provides that a person appointed to the Commission “shall have” either “significant experience in the legal defense of criminal or juvenile justice cases” OR “demonstrated a commitment to quality indigent defense representation or to working with and advocating for the population served by the department.”

According to the story in the Journal, Chasey and Maestas wrote a letter to Governor Martinez stating that “Unless Ms. Riedel practiced criminal defense before being hired at the Doña Ana County DA’s office, I think we can all agree that she does not qualify under the statute.”  There’s no link to the letter in the Journal article, but if that’s the basis for the good legislators’ criticism, then I think we can all agree that they’re overlooking the statute’s alternative requirement.  Even if one is not a former defense attorney, one can still be qualified by having “demonstrated a commitment” to indigent criminal defense “or to working with and advocating” for criminal defendants. Of course, I do not know whether Ms. Riedel satisfies this alternative requirement either, so for all I know, she may or may not qualify.

The second argument is more disturbing. According to the Journal story, the New Mexico Criminal Defense Lawyers’ Association has stated that appointing Ms. Riedel to the Commission would be like “having the fox guard the henhouse.” This criticism seems misguided and unfair. It is often the case that we lawyers are called on to play different roles, and the fact that a lawyer has zealously performed his or her responsibilities on one “side” or another does not mean that the lawyer is thereby disqualified for other roles.  If Ms. Riedel was a zealous and competent prosecutor, and a fair judge, then that ought to make her more, not less, qualified for other roles in the legal system.

The notion that lawyers cannot put aside former roles and take on new ones does not seem to be a valid one, in my experience. I was a prosecutor with the Philadelphia District Attorney’s Office, and some of the most dedicated and skilled criminal defense lawyers I faced were former prosecutors. Likewise, since returning to New Mexico, I’ve found that some of the best civil plaintiff’s lawyers used to work for defense firms.  And many New Mexico judges are former civil plaintiff’s or defense lawyers, or former PDs or prosecutors, and have served with distinction once they’ve put on the black robe.

I don’t know Ms. Riedel (I believe I met her once several years ago), and don’t know if she has the qualifications the statute requires to serve on the Commission, but if she does, then she should be fairly judged based on those qualifications, and not automatically and unfairly disqualified because she was a prosecutor.

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