Judge halts death penalty case in New Mexico due to federal shutdown

Death penalty cases are especially costly to prepare, and the delay in Tsethlikai's case provides an early warning about escalating impacts of the shutdown on the judiciary.

“If you want to pursue the death penalty, you can't do it without funding the defense,” said attorney Ryan Villa, who coordinates a panel of court-appointed defense attorneys in New Mexico.

The push by President Donald Trump's administration to reinstate federal capital punishment follows a moratorium imposed by the Biden administration. Of the 23 cases authorized by Attorney General Pam Bondi, eight were struck down by courts and Tsethlikai's is the only one temporarily halted because of the shutdown, according to groups that track such litigation.

Ripple effects

Villa cautioned that court-appointed defense attorneys in New Mexico are turning away from indigent case work to pursue more reliable pay, making delays more likely as defense teams struggle to meet constitutional obligations.

The federal judiciary says funds ran out in early July to pay thousands of court-assigned defense attorneys under provisions of the 1964 Criminal Justice Act, which pays legal fees for criminal defendants. Those attorneys represent about 40% of federal defendants nationwide who can't afford an attorney.

Rather than relief, the October start of the federal budget year brought the shutdown.

“It was bad enough to have their payment delayed until Oct. 1, but now it’s delayed indefinitely,” said Milagros Cisneros, a supervisory assistant federal public defender in Arizona. “It’s not just their own fees being withheld, but also payment to investigators, interpreters, transcriptionists, experts.”

At the same time, an array of federal judiciary staff — though not judges — are scheduled to receive their last guaranteed paycheck of the shutdown on Friday. That includes employees for U.S. attorneys, court clerks, public defenders and potentially the U.S. Marshals, said Heather Small, chief deputy clerk for the U.S. District Court of New Mexico.

“The majority of the district courts throughout the nation are in the same position,” she said. In New Mexico, prior year funding will pay jurors and allow trials to move forward.

Margaret Katze, a federal public defender for New Mexico, said people are stressed and worried.

“It’s just crazy that Criminal Justice Act attorneys, most of whom are single-office practices — small businesses — they literally have not gotten paid since July 3,” she said.

Constitutional rights

In temporarily halting Tsethlikai's case a week ago, Albuquerque-based U.S. District Court Judge David Herrera Urias wrote that “the right to a defense is one of the bedrock principles of this country, and the shutdown has unquestionably impeded defendant’s right to counsel in this case.”

Urias, a former attorney for the Mexican American Legal Defense and Educational Fund, was nominated by President Joe Biden and confirmed by the Senate in 2021.

Federal prosecutors in a court filing condemned the motion to halt the case as a tactic to delay justice under the guise of the government shutdown. A spokesperson for the office said the shutdown prevented further comment.

Public defenders say a required, exhaustive investigation into Tsethlikai's past and his current mental health had ground to a halt without adequate funding. One unpaid defense team member dipped into personal retirement savings, while another turned to other employment to support young children.

Dwindling resources

In California, a federal court website warns that court-appointed defense attorneys “will remain on non-pay status until appropriations are restored,” and that payment vouchers won’t be reviewed in the meantime.

Defense attorney Anthony Solis, representative for court-appointed defense attorneys in the central judicial district of California, estimates just 20 indigent-defense attorneys are accepting cases during the shutdown, out of 90 who are eligible.

“It’s really a mess,” he said, noting that the lack of resources impedes the ability to represent defendants.

A recent court motion in the same district seeks to dismiss a lead defendant in a major racketeering and attempted murder case linked to more than 30 defendants.

Attorney Gregory Nicolaysen of Valencia, California, filed the motion denouncing a failure to fund the defense. He said it's “a message to the government that this has to get fixed.”