Oregon public defense system halts payments to prosecutors for discovery materials

By Conrad Wilson (OPB)
Jan. 4, 2022 12:42 a.m.

“This was never appropriate or proper from its inception,” OPDS’s recently appointed Executive Director Stephen Singer told OPB.

Public defenders representing impoverished clients in Oregon will no longer pay district attorney’s offices’ to access discovery evidence. For years, prosecutors have charged public defenders for materials such as documents, recordings and other material relevant to a criminal case against a defendant deemed too poor to pay for their own attorney.

Over objections from district attorneys, the Office of Public Defense Services announced it would stop paying the fees on Jan. 1.

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“This was never appropriate or proper from its inception,” OPDS’s recently appointed Executive Director Stephen Singer told OPB. “There is no provision in Oregon law that allows district attorneys or the state to pass these costs on to indigent criminal defendants.”

Singer took over OPDS in December after running the New Orleans public defense system following Hurricane Katrina. He’s also worked as a law professor in Louisiana and Wyoming, and served as a public defender in Washington D.C. Singer said he’s never heard of a system like Oregon’s where the state’s discovery obligations and costs are paid for through public defense funds.

“It’s a unicorn,” Singer told OPB. “I’ve never heard of it before. I’m not aware of any other state or in the federal system where this occurs.”

Washington County Courthouse

Washington County Courthouse

M.O. Stevens / Wikimedia Commons

Oregon contracts public defense with attorneys and a few nonprofits around the state. Singer estimated OPDS has paid up to $6 million per biennium in discovery to district attorney offices across the state.

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Singer said the costs district attorneys are charging OPDS vary widely from county to county and don’t appear to represent the actual costs of providing discovery. He cited one county that charged different rates for copies depending on the type of case and noted some appeared to charge significantly more for compact discs and flash drives than their actual cost.

“Basically, they’re fleecing the taxpayers,” Singer said, noting public defenders don’t charge district attorneys for defense-related discovery costs.

In his letter to defense attorneys, Singer said prosecutors are constitutionally required to disclose discovery.

“The clients you represent through contracts with OPDS have been found indigent and unable to afford their own attorney or costs associated with defending themselves and their families against the accusations brought by the State,” Singer wrote in a Dec. 28 letter announcing the decision. “Neither the clients themselves nor OPDS is responsible for paying fees to learn what evidence the State has regarding its allegations.”

District attorneys have largely objected to the policy change.

Michael Wu, executive director of the Oregon District Attorneys Association, referenced a Nov. 30 letter to OPDS asking that they continue to pay for discovery until after the 2022 legislative session.

“Prosecutorial resources are already stretched by a historic backlog of cases resulting from widespread court closures across the duration of the pandemic,” the ODAA letter states. “We again request that you delay this action long enough for the issue to be addressed by the 2022 Legislature.”

Singer said he supports local prosecutors being properly funded, especially to defray the costs of providing constitutionally-mandated discovery.

“If they’re not being properly funded to defray these costs, I’ll sit at the table with them at the Legislature and support their request for funding. But they need to get that funding directly from the Legislature, not through the public defense system,” he said.

OPDS and ODAA are scheduled to discuss fees later this month.

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