Oregon’s ongoing failure to provide attorneys for criminal defendants who cannot afford one is likely to grow worse in the coming days, as the largest public defense firm in Washington County announced it would halt taking most new clients starting next week.
At the same time, a judge in Multnomah County recently dismissed three felonies, including a domestic violence charge, because the state could not provide a public defender to take the case.
For months, Oregon has failed to meet its constitutional requirement of providing defendants with adequate representation. Lane, Marion, Multnomah and Washington counties have been hit the hardest by a public defense shortage that’s left dozens without attorneys, including many people in custody.
“We already have people in custody who don’t have attorneys,” Richard Moellmer, trial court administrator for Washington County, said Tuesday. “I expect it to get worse.”
As of Tuesday, nine defendants charged with felonies were in custody at the county jail and did not have an attorney, Moellmer said. He did not have information about out of custody defendants. In Multnomah County, there were more than 150 people without appointed counsel, including 15 in custody, court staff said.
Metropolitan Public Defender operates offices in both counties. Over the weekend, the nonprofit announced it would stop taking most new felony and misdemeanor cases in Washington County for four weeks. Staff cited excessive caseloads for attorneys that risked harming their ability to adequately represent their current clients. The office of roughly 30 public defenders already is understaffed. Last week, two attorneys resigned, leaving behind 160 cases to be redistributed to the remaining MPD lawyers.
“I have been a public defender for over 20 years, and I have never worked in a jurisdiction that has had unrepresented clients until the past few months,” Carl Macpherson, executive director of MPD, wrote in a Feb. 26 email accounting the office’s decision to pause new cases in Washington County. “I am discouraged, horrified, and disheartened by our reality.”
A combination of factors has led to Oregon’s current public defense crisis. For two years, the pandemic has slowed hearings and trials in parts of the state. At the same time, police and district attorneys continue to make arrests and investigate crimes — which have increased in some communities — leaving some public defenders with hundreds of open cases. Many in the public defense community have said today’s problems long predate the pandemic and are the result of mismanagement and chronic underinvestment by lawmakers.
In a criminal case, public defenders have a number of ethical obligations to their client. For example, they’re required to independently investigate the alleged crime and the charges, before advising their client whether they should take a plea deal. In Oregon, the vast majority of criminal cases get resolved by pleas, rather than trials.
The Oregon State Bar, which licenses attorneys, states public defenders cannot have excessive caseloads and “must refuse to accept a workload that prevents them from meeting their ethical obligation to each client.”
Given the attorney shortage and workload his attorneys face in Washington County, Macpherson said he and other attorneys are at “grave risk” of disciplinary action if they don’t follow the bar’s ethics rules.
The American Bar Association released a study in January that found Oregon needs around 1,296 attorneys to fully meet its public defense obligations. Despite the staggering figure, some prosecutors in Oregon are growing frustrated.
“To me that seems almost fantastical,” Washington County District Attorney Kevin Barton said of the ABA report. “It’s hard to believe that that’s grounded in reality.”
Barton readily admitted he knew less about the inner workings of the state’s public defense system compared with other areas of public safety, but he placed the blame on public defenders for worsening the crisis.
“What happens if a key part of the system just doesn’t show up?” he asked.
Barton said the Office of Public Defense Services (OPDS), the agency that oversees the state’s public defense system, is obligated to find defense attorneys.
During a meeting this week with public defenders, judges and court staff, Barton said public defenders suggested his office stop charging misdemeanor property crimes to help reduce the workload.
Barton said he responded to the suggestion with a “flat no.”
Barton said that would mean not prosecuting shoplifting, stolen catalytic converters and people who break into vehicles.
“You’d have chaos,” Barton continued. “The solution needs to be that OPDS and those folks entrusted to manage that, find a way of managing the resources they have,” or advocate for more “if there’s a case to be made.”
OPDS is an independent state agency that’s part of the Oregon Judiciary, the state’s third branch of government that’s overseen by Supreme Court Chief Justice Martha Walters. She’s responsible for appointing the commissioner who oversees OPDS and it’s executive director.
Last month, at the behest of Gov. Kate Brown, Oregon lawmakers agreed to provide $12.8 million in new funding to help bolster the state’s public defense system. The money would add 32 attorneys plus support staff and investigative resources in the four hardest hit counties. While the investment’s aim is to quickly bring the state back into compliance with the U.S. Constitution and rulings by the U.S. Supreme Court, lawmakers stressed the funding is a temporary fix and said they want to make larger overall investments in public defense.
Last week, over the objections of prosecutors, Multnomah County Circuit Court Judge Kelly Skye dismissed three felonies at arraignment hearings because there wasn’t a public defender to appoint.
“This particular case presents an extreme situation,” Skye said during one of the arraignments, noting the defendant was in custody. “I don’t have the ability to appoint a lawyer to represent her.”
Skye dismissed the cases without prejudice. That allows prosecutors to still bring the cases before a grand jury to pursue charges again.
“Holding somebody in custody without providing them counsel would be unconstitutional,” Skye said in court.
Like Barton, Multnomah County District Attorney Mike Schmidt said the lack of public defenders is a public safety concern. As the dismissed cases illustrate, Schmidt said when the state isn’t meeting its constitutional obligations, it’s a problem for victims of crime and his office’s ability to hold people accountable.
“Public defenders are actually a critical component of a well functioning public safety system,” Schmidt said. “A well-funded public defense resource can be a critical component of making sure that we get it right ... And that’s critical for victims.”
A Multnomah County judge will hear further arguments Wednesday about how to move forward should other cases arise without public defenders.