Federal judge to order release from jail for anyone denied an attorney in Washington County

By Conrad Wilson (OPB)
Aug. 16, 2023 12:25 a.m.

Anyone held in the Washington County jail without a court-appointed lawyer will be released 10 days after their initial court appearance, under an order announced Tuesday by U.S. District Court Judge Michael McShane.

In a preliminary order read from the bench Tuesday following a two-hour hearing in Eugene, McShane said the ruling applies to the 36 people currently in the county’s jail without counsel and “any future defendants who are similarly situated.”


While the ruling will be directed at Washington County, the public defense crisis is statewide. As of Tuesday, more than 160 people facing charges in 17 of Oregon’s counties were in custody and did not have a court appointed defense attorney.

“It’s a systematic statewide problem,” McShane said Tuesday. “It needs to be addressed quickly, because we can’t simply hold people in custody without representation for indefinite periods of time.”

The Sixth Amendment guarantees a right to an attorney. The courts have interpreted that right to mean people charged with a crime must be provided with an attorney that’s paid for by the state if defendants cannot afford one. For nearly two years, Oregon has failed to provide lawyers for everyone charged with a crime.


“It’s an embarrassment to the state,” McShane said. “It’s a complete tragedy and nobody seems to have an answer. Literally we suspended the Constitution when it comes to this group, and that simply is not the appropriate response.”

The case was filed by Oregon’s Federal Public Defender’s Office last month. During remarks in court Tuesday, Fidel Cassino-DuCloux, the federal public defender, ticked through a slew of constitutional violations playing out daily.

“These constitutional violations are occurring right now, your Honor,” DuCloux said. “They’re not occurring in some bunker or some clandestine place like Guantanamo Bay, they’re happening in plain view and many people are just turning a blind eye or pointing the finger at somebody else.”

Attorneys for Washington County argued the sheriff cannot address many of the issues raised by the federal defenders, such as providing attorneys to those in custody.

“You have to admit, the one thing the Washington County Sheriff can do is release people under a habeas order,” McShane replied.

“Yes, your Honor,” Washington County’s Eamon McMahon said. “Their release is conditioned on the provision of counsel, which is beyond the power of the Washington County Sheriff.”

McShane said he planned to file his written order Thursday, when it would take effect.

“Any order I issue is not meant to be a disparagement of either the judges in Washington County or the DA’s,” McShane said. “They both have to bear this problem but aren’t really the root cause.”