Federal Public Defender asks for dismissal of charges against Oregonians without a lawyer

By Conrad Wilson (OPB)
Aug. 3, 2023 8:40 p.m.

The habeas petition names 11 Washington County criminal defendants, but seeks to represent hundreds more in similar situations as Oregon struggles to meet its constitutional obligations

Oregon’s Federal Public Defender filed a class action lawsuit arguing people charged with state crimes in Washington County are being unlawfully held because they’ve not been provided a lawyer.

In the habeas corpus petition, the defenders ask for a federal court to dismiss pending state charges for defendants without attorneys and to release them unconditionally from the jail or other pretrial conditions. Alternatively, the defenders ask for a federal judge to order funds be made available so the defendants can hire private attorneys for people charged with crimes in the county.


“We filed this federal habeas petition to attempt to breathe some life into the Sixth Amendment because there is an inordinate amount of Oregonians who have been charged with state crimes and they are not being provided counsel,” Fidel Cassino-DuCloux, Oregon’s Federal Public Defender, told OPB.

The case represents the latest effort to address a sustained and deepening constitutional crisis playing out across Oregon’s justice system. The state continues to fail to provide attorneys for people charged with crimes who cannot afford one, a violation of their constitutional rights.

Washington County Courthouse

The Washington County Courthouse in Hillsboro, Ore.

M.O. Stevens / Wikimedia Commons

The habeas petition names 11 Washington County criminal defendants, but seeks to represent hundreds more in similar situations. As of Wednesday, there were nearly 300 people in Washington County charged with crimes who did not have a public defender. Of those, 60 were in custody, according to data from the Oregon Judicial Department.

“We think that it will have an effect on the thousands of other Oregonians being charged throughout the state,” Cassino-DuCloux said. “Other Oregonians in other counties who are being charged and who are poor and who are not being provided counsel, I am confident that if a federal judge rules in our favor, that other counties will find ways to redress the constitutional violations. "


During a June 27 hearing in Washington County Circuit Court, state prosecutors noted their concerns about a different set of habeas petitions and what might happen if a federal judge were to rule in favor of criminal defendants who, at the time, the state had not found court appointed lawyers to represent.

“I guess kudos to these defendants for figuring out a way to, for lack of a better term, jump the line, but they have,” Deputy District Attorney Andrew Freeman told Washington County Circuit Court Judge Kathleen Proctor. “They have created their own crisis within the crisis, and it is extremely emergent … If they are successful in the litigation currently pending and proceeding in federal court to have a federal judge step in, basically go over the top of Your Honor and the State court system and order this case dismissed, it is not refile-able. It’s gone forever.”

Freeman noted one of the cases involved sexual abuse of a minor.

“We have victims that will never get justice if the case is dismissed,” Freeman stated. “We have a public safety issue. We have an obvious concern for the fact that, like it or not, if that federal litigation proceeds, if that federal litigation is successful, it will render all of this moot.”

Freeman said it’s possible to have a policy discussion about how the state’s public defense system got to a place where it was systemically violating defendants rights, but that would not do anything to get the defendants in the courtroom that day.

Ultimately, those defendants got court appointed lawyers. But the same dynamics that played out in June are even more pressing in this larger class-action habeas petition filed by Oregon’s Federal Public Defender.

A Washington County spokesperson Julie McCloud said in statement that the sheriff’s office supports legal and legislative efforts to protect and enforce a defendant’s right to counsel.

“The Sheriff’s Office plays a very limited role in these matters and has sought dismissal of the federal habeas petitions because it cannot grant the relief sought by the petitioners,” McCloud said.

The petitioners are charged with crimes that range from misdemeanor assault charges to assault of a public safety officer and rape. Regardless of their charges, defendants are guaranteed the right to a lawyer to assist in their defense.

“As with other historic state actions that systematically deprived classes of Americans of their constitutional rights, the federal courts provide the ultimate safeguard against Oregonians being held in jail or under restrictive conditions in the community in violation of their constitutional rights,” the federal public defenders petition states.