Oregon Supreme Court sides with public defender who objected to taking case

By Conrad Wilson (OPB)
June 18, 2023 1 p.m.

In a preliminary ruling Thursday, the Oregon Supreme Court found a state court judge erred by forcing a public defender to take a new client, over the objections of the lawyer’s employer.

The court ruled that a judge’s order assigning a new case to a public defender in Marion County who said he could not ethically represent the client, must be vacated or the judge should explain her decision.

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Oregon’s public defense system is in turmoil. For more than a year, Oregon has failed to meet the constitutional requirement to provide an attorney to everyone charged with a crime. That includes hundreds of people in jail and thousands more who are not in custody. Not only has the state violated the rights of defendants, the lack of attorneys has created challenges for prosecutors and crime victims.

For months, public defenders in Marion County have sought help from the courts to reduce their caseloads.

FILE: Marion County Courthouse in Salem, Ore., May 19, 2021.

FILE: Marion County Courthouse in Salem, Ore., May 19, 2021.

Kristyna Wentz-Graff / OPB

They argued their attorneys’ workloads are so excessive they were effectively violating their legal and ethical obligations as lawyers. At the same time, they argued they were also violating their client’s constitutional rights to effective legal counsel.

But judges in the county kept appointing clients, arguing that they have a constitutional obligation to ensure those charged with crimes who cannot afford a lawyer, get one.

During a hearing on April 10 in Marion County, Shannon Wilson, the executive director for Public Defender of Marion County, a nonprofit public defense firm, objected to any new court-appointed clients.

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“I am notifying the court that we are at caseload and workload capacity,” Wilson told Pro Tem Judge Tiffany Underwood. “I am responsible for the ethical violations of those attorneys that I supervise and I must take remedial action. Because of current caseloads, all attorneys at [the Public Defender of Marion County], including myself, are unable to provide constitutionally sufficient representation to new individuals facing criminal charges.”

But Underwood appointed one of Wilson’s lawyers to a criminal case anyway.

“Over the Public Defender of Marion County’s Objection, I am going to appoint Tim Downin to represent you,” Underwood told the defendant.

On May 3, the Public Defender of Marion County made a mandamus petition to the Oregon Supreme Court. It states that, as with all of the public defenders in Wilson’s office, Downin lacks the capacity to take on more clients. The firm has 64% of the staff it needs to meet its current caseloads, the petition states.

“As a result, every time a [Public Defender of Marion County] attorney, including Mr. Downin, is required to take on a new case, the Court is compelling that attorney to violate their ethical duties by forcing them to expend their limited resources on one client at the expense of another, with neither client receiving the resources and time necessary for a proper constitutional defense,” the mandamus petition states.

The Supreme Court’s one-page order states Judge Underwood is “commanded to vacate the order entered on April 10, 2023, appointing Mr. Downin as counsel for defendant, or, in the alternative, to show cause for not doing so” within the next two weeks.

Linda Hukari, Marion County Circuit Court trial court administrator, said in a statement that the court planned to respond to the Supreme Court’s ruling in the coming days.

“The Marion County Circuit Court takes seriously its constitutional and statutory obligation to ensure that eligible defendants have qualified attorneys to represent them,” Hukari said in a statement.

Josh Krumholtz, the attorney representing Public Defender of Marion County, said they’ve succeeded in getting the state’s highest court to engage on the case.

“It established unequivocally that trial judges may not appoint public defenders who do not have the ethical capacity to handle cases for which they’re being appointed,” Krumholtz said. “The next step is to now solve the problem of unethical and unconstitutional courts by working together to take next steps to resolve those issues.”

Senate Bill 337, which would make sweeping changes to the state’s public defense system, could pass now that Senate Republicans have ended their weekslong walkout.

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