Oregon Supreme Court dismisses case challenging state public defense system

By Conrad Wilson (OPB)
Oct. 14, 2023 4:39 a.m. Updated: Oct. 14, 2023 4:43 a.m.

The justices dismissed one case but agreed to hear another with similar arguments, restarting a monthslong process.

The Oregon Supreme Court late Friday dismissed a case designed to force changes in the state’s troubled public defense system.

The justices were considering whether a Marion County Circuit Court Judge could force a public defender to take a new client even if the lawyer said they had too many cases.

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In a two-page order signed at 4:09 p.m., Justice Rebecca Duncan wrote that the issues before the court were resolved and that “this matter is therefore moot” because the attorney at the center of the case, Tim Downin, left his job at the Public Defender of Marion County.

Oregon Supreme Court in Salem, Ore., May 19, 2021.

Oregon Supreme Court in Salem, Ore., May 19, 2021.

Kristyna Wentz-Graff / OPB

Minutes later, the court agreed to hear another case out of Douglas County based on similar arguments. But in dismissing a case they were in the midst of deliberating, the justices have restarted a monthslong process with new oral arguments, and removed the nonprofit firm that has been at the forefront of a novel legal argument.

The Supreme Court case stemmed from a judge in Marion County appointing Downin to a defense case despite his and his firm’s objections. Trial court judges said they had an obligation to the defendant to appoint a lawyer.

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Oregon has for years been in the midst of a constitutional crisis for failing to provide people accused of crimes with the legal counsel that is required by the U.S. and Oregon constitutions. Attorneys for the nonprofit firm Public Defender of Marion County developed a case that went beyond the question of whether people charged with crimes merely had a lawyer. Their argument centered the legal and ethical responsibilities of a lawyer to actually provide an effective defense, such as taking time to independently investigate the case and review evidence.

“The crushing workload has made it impossible for me to provide ethical representation to all of my clients,” Downin said this month in a signed declaration to the Supreme Court.

A spokesperson for the Oregon Department of Justice, which sought the dismissal, did not return a request for comment late Friday.

Shannon Wilson, executive director of the Public Defender of Marion County, said the case “demonstrated what is possible when public and private attorneys stand together in solidarity for the humane and ethical representation of all clients.”

The new case Supreme Court justices agreed to hear involves Michael Bertholf, a public defender who works in several counties. On Aug. 23, Bertholf was appointed by a judge in Douglas County to represent a person who had been in custody since March.

Bertholf was not in court at the time and only later informed of the appointment, according to his petition to the Oregon Supreme Court. He said he wasn’t consulted to see if he had the capacity to take the case.

“I think the worst part was I got calls from that client,’” Bertholf told the Oregon Public Defense Services Commission in August, which oversees the state’s public defense agency, in August. “And I had to tell him, ‘I’m sorry. I really cannot come and see you in the next week before your court appearance.’”

According to Bertholf’s Supreme Court petition, the legal question is the same: “Can a trial court force an assignment of a case on a qualified, but unwilling, Oregon lawyer?”

The Oregon Supreme Court scheduled oral arguments for Dec. 14.

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