Jackson County is experiencing a shortage of public defenders. Last week, a Jackson County Circuit Court heard nearly 20 motions from defendants asking to have their cases dismissed. The reasoning? A lack of court-appointed counsel. Kevin Opsahl has reported on what’s happening in the county for the Rogue Valley Times. He joins us with details on what the shortage looks like in Southern Oregon.
The following transcript was created by a computer and edited by a volunteer:
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Jackson County, like counties all across Oregon, is in the middle of a public defender crisis. There are simply not enough public defenders to represent criminal defendants who can’t afford Constitutionally guaranteed legal counsel. Last week, a Jackson County Circuit Court heard nearly 20 motions from defendants asking to have their cases dismissed. As the Rogue Valley Times has reported, prosecutors asked the Judge to go in the opposite direction in a sense and allow private lawyers, civil attorneys, or government or elected officials to stand in as public defenders as long as they can legally practice law in the state of Oregon. Kevin Opsahl has been reporting on this for the paper and he joins us now. Welcome to the show.
Kevin Opsahl: Well, thank you for having me.
Miller: Can you give us a sense of just how bad the public defender shortage is right now?
Opsahl: Yeah, sure. Absolutely. So, public defenders in Oregon are not state employees. They’re on contract by Office of Public Defender and the contract allows credits for certain types of cases and the attorneys that I’ve talked to in Jackson County say they have maxed out for the remainder of the contract. They cannot take on more cases and that means that numerous defendants are without an attorney.
I don’t know the number of attorneys that are not able to take on cases. I just know, based on what I heard in court, that it sounds like there are over 100 defendants in Jackson County without representation. There are three major firms in Jackson County that offer public defense and they’ve all told me that they have attorneys that are maxed out. So, this is turning into a crisis that is of a concern to a lot of public defenders in Jackson County. The DA, Beth Heckert, she’s aware of it. She’s told me about it. She’s concerned about it too.
The DA has done a number of things to alleviate the issue. Of course, on Thursday, which I’ll talk about, there was a hearing in which many defendants tried to dismiss their cases before a judge. So this has really seen an escalation. The crisis, as you could say, ‘Yeah, that it’s really bad,’ and I’m sure many attorneys in Jackson County would agree with you.
Miller: As you noted, so on Thursday, a number of defendants said, ‘Hey, I don’t have legal representation right now, I’d like you to dismiss my case,’ and we’re not just talking about low level property crimes, right? I mean, can you give us a sense for the cases that were included in these requests for dismissal?
Opsahl: Yes, these are not just misdemeanor cases, these are felony cases. The biggest charge I could think of was a fellow by the name of Brandon Lee Roy. He has an allegation of first degree rape. It underlines that if there’s a public defender shortage crisis and you have potential to dismiss because the judge might feel that way, then peoples’ lives might be at stake. So yes, there was one defendant headed a charge of rape. There are other things like luring of a minor, sexual corruption of a child, sexual abuse, trespass, burglary, robbery that…those kind of charges.
So in some ways, the fact that you look down the list and see close to 20 defendants who have felony charges, it just sort of makes one wonder what might happen if their cases were ever dismissed. Because peoples’ lives in the community might be at stake. So yeah, the charges underline the magnitude of the whole shortage.
Miller: So what did prosecutors put forward in response to these requests for dismissal? What was their counter proposal?
Opsahl: I was lucky enough to get a 10 page memo outlined by Beth Heckert and Deputy Wade Hilsher. An attorney gave me that memo with 10 pages. Basically, the remedies run the gauntlet. For starters, you have the DA’s office, saying, ‘Hey, look, if you have a license to practice law and you’ve taken that bar oath, whether you’ve done criminal cases or not, you could very well step into the arena and try criminal cases. There’s no reason why you can’t.’ So that’s a major plank of this. That means not just government workers but attorneys who take on civil cases as well. If you look further in the memo, you’ll see that Hilsher writes that, ‘If it truly gets bad enough, the shortage crisis, and a civil attorney refuses to take on a criminal case that maybe the judge could hold them in contempt or that they should be forced to comply with their criminal case.’
I want to say that on Thursday, I heard Judge Bloom, the presiding judge, say he did not want civil attorneys taking on criminal cases. He wants to work with the system we have an Office of Public Defenders and find qualified attorneys to take on criminal cases. So that’s what the DA thinks could happen that civil attorneys could do this but the judge doesn’t seem to be inclined to do that right now.
Miller: What was the scene like in front of Judge Benjamin Bloom on Thursday?
Opsahl: Well honestly, when I go into court, it feels so empty and I feel like I’m the only one that really truly vested in it day by day, aside from the victim’s family and prosecutors. Thursday felt more like a city council meeting or a commissioner’s meeting. I counted 35 people in the pews. There was nowhere else to sit and this ran from the families of victims, the families of the defendants, and also just attorneys who were curious. So it was a packed house.
I’d say the hearing lasted about an hour and there were some technical snafus to try to get the defendants, who all appeared virtually, up and running. The judge actually left his chambers briefly. But once the technical aspect of this got worked out, we got running smoothly. Judge Bloom explained to these defendants that they don’t have an attorney and therefore right now they were representing themselves - that anything they could say at the hearing might be used against them. So I think a lot of the defendants chose their words carefully. There wasn’t a whole lot said on the defendants. One defendant said he thought he was being denied an attorney and Judge Bloom said, ‘Oh, you’re not being denied an attorney. We’re just having trouble finding one.’
So I think the shortage crisis is leading to some confusion among defendants who don’t have attorneys. They don’t have an expert, they don’t have somebody to help explain these things to them. I guess that’s one of the reasons why I would hope the shortage crisis gets cleared up soon so that the defendants can have the representation they deserve. I don’t think anyone’s arguing against that.
Miller: So, as you noted, the judge didn’t like the prosecutor’s idea of bringing in other attorneys who don’t necessarily have criminal trial experience to work as public defenders. But if I understand correctly, he also didn’t do a blanket dismissal, saying ‘all of you can go free.’ So, what did he rule?
Opsahl: I think this judge was very careful and very conservative in his rulings. Judge Bloom is the presiding judge,
so he’s really kind of the ‘judge of all judges’ for Jackson County. He did not dismiss any of the cases. What he did was he either released the defendant temporarily until their next court date and did not drop their charges at all or he kept them in jail depending on the level of offense. That first degree rape defendant, he kept that person in jail. Again, because of the level of charge. So I think Judge Bloom was looking at each case independently and weighing it. He really didn’t want to dismiss these cases simply because the defendants lack an attorney. I think he sees light at the end of the tunnel, perhaps that the defendants can get an attorney.
I think that in lower level cases, he was willing to release them until after July and they could get an attorney because he thought that was feasible. So he showed some leniency, but he was also pretty tough because he didn’t dismiss charges at all for anybody. And that’s what everybody was asking, but he didn’t grant that.
Miller: But if nothing else, these cases are going to be delayed maybe for three months or more before counsel is found.
Finally, you talked about the packed courthouse on Thursday. My understanding based on your reporting is that some people with connections to the criminal justice system volunteered on the spot to take on defense cases. What happened?
Opsahl: There was one fellow named Dirk Doyle who came in very briefly and sat down before the judges. He said that he was willing to take on a female defendant’s case. So that one was sort of declared moot, in other words, Judge Bloom didn’t have to take up her motion for dismissal because an attorney was found.
The other thing that happened that was quite dramatic was Brandon Lee Roy, who was charged with first degree rape, he said he could not really speak because he has a traumatic brain injury. So his father, who said he’s Brandon’s guardian, came up and spoke before the judge saying, ‘Look, Brandon needs a more structured environment outside the prison, so I’m asking you to release him.’ The prosecutor and the judge went back and forth and then a former judge stood up, her name’s Lisa Greif, and she’s now an attorney in Medford. She stood up and said, ‘Oh, this is ridiculous. This is terrible.’ She said, ‘if you’re not going to release him, I’ll take him on pro bono, (which means free) tonight.’ So she did it kind of out of irritation here about the whole public defender shortage. I tried to catch up with her after the hearing. She said she didn’t want to comment right now, but that was probably the most dramatic thing to happen - that there was an argument. A back and forth, for a defendant who had probably the highest charge out of the group, and that person got an attorney on the spot.
So you can tell, there are people who care about the need for a defendant to have an attorney and that just played out right there in Jackson County Courthouse.
Miller: Kevin Opsahl, thanks very much.
Opsahl: Thank you for having me.
Miller: Kevin Opsahl is a reporter with the Rogue Valley Times.
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