A man booked in the Washington County Jail since mid-August has asked a federal judge to order his release from custody. He says his constitutional rights are being violated because the state has charged him with a crime, but has failed to provide him with an attorney.
Robert Dean Donery was initially arrested on two felony charges in Oregon state court, including sexual abuse in the first degree.
The Federal Public Defender’s Office is representing Donery in a habeas corpus petition; a writ of habeas corpus requires that a person who is in custody be brought before a judge and that they be able to challenge that custody. Attorneys with the office have asked a federal judge not only to order Donery’s release, but also dismiss charges until the state can provide Donery with a court-appointed lawyer.
For most of the past year, the state has been extremely short on public defenders.
As of Wednesday, more than 830 people charged with crimes were without attorneys, according to the Oregon Judicial Department. Of those, 30 were in custody, including Donery.
Rather than hire public defenders, Oregon contracts out its entire public defense system to groups of private attorneys and nonprofits. The Office of Public Defense Services, the state agency that oversees indigent defense, is so desperate for attorneys that it is circulating an email with the subject line: “In-Custody, Unrepresented Client List for Multnomah and Washington Counties — $158 Hourly Rate.” Donery’s name, along with 19 others, is on the list. That hourly rate is considerably higher than the state typically pays attorneys it contracts with to take a certain number of cases each year.
Donery’s habeas petition represents the first time Oregon’s federal public defender has taken legal action toward the public defense crisis that’s played out across the state court system for most of the year.
Assistant federal public defender Robert Hamilton, Donery’s attorney in the habeas petition, writes in court filings that holding Donery in custody is unconstitutional.
Hamilton said his client has been forced to attend multiple hearings without an attorney “where he has not had an adequate opportunity to be heard and where he was directly contacted by the judge and the prosecutor without an attorney present,” Hamilton writes in the petition for Donery’s release. At the hearings, Donery has been asked to talk “about the circumstances surrounding this case in order to have a chance at release.”
The Washington County District Attorney’s Office alleges that in January, Donery inappropriately touched a woman’s vagina, and it describes the offense in charging documents as domestic violence. Prosecutors also alleged Donery tried to force the woman to ingest Oxycodone, an opioid prescription drug that causes drowsiness.
Last month, a judge ordered Donery released from jail “because no counsel had been located and he could not be brought to trial” under the state’s speedy trial rules.
Days later, Washington County prosecutors filed separate sexual abuse charges against Donery, including sodomy and strangulation, which kept him in custody. He also faces a strangulation charge — a felony — as well as a misdemeanor assault charge in Lane County.