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Oregon Public Defender System Sued

Delayed cases impact right to counsel

5/17/2022, 10:20 a.m.
Criminal defendants in Oregon who have gone without legal representation for long periods of time amid a critical shortage of ...
Carl Macpherson, the Portland-based executive director of Metropolitan Public Defender, says his firm of 90 public defenders recently stopped taking certain types of new criminal cases for a month because they had so many cases that the attorneys were violating their ethical obligations to clients.

(AP) — Criminal defendants in Oregon who have gone without legal representation for long periods of time amid a critical shortage of public defense attorneys filed a lawsuit Monday that alleges the state violated their constitutional right to legal counsel and a speedy trial.

The complaint, which seeks class-action status, was filed as state lawmakers and the Oregon Office of Public Defense Services struggle to address the huge shortage of public defenders statewide.

The crisis has led to the dismissal of dozens of cases and left an estimated 500 defendants statewide — including several dozen in custody on serious felonies — without legal representation. Crime victims are also impacted because cases are taking longer to reach resolution, a delay that experts say extends their trauma, weakens evidence and erodes confidence in the justice system, especially among low-income and minority groups.

“There is a public defense crisis raging across this country,” said Jason D. Williamson, executive director of the Center on Race, Inequality, and the Law at New York University School of Law, who helped prepare the filing. “But Oregon is among only a handful of states that is now entirely depriving people of their constitutional right to counsel on a daily basis, leaving countless indigent defendants without access to an attorney for months at a time.”

The lawsuit specifically names Gov. Kate Brown and Stephen Singer, the recently appointed executive director of the state’s public defense agency, and asks for a court injunction ordering criminal defendants to be released if they can’t be provided with an attorney in a reasonable period of time. The lawsuit doesn’t specify what would be considered “reasonable.”

Oregon’s system to provide attorneys for criminal defendants who can’t afford them was underfunded and understaffed before COVID-19, but a significant slowdown in court activity during the pandemic pushed it to a breaking point. A backlog of cases is flooding the courts and defendants routinely are arraigned and then have their hearing dates postponed up to two months in the hopes a public defender will be available later.

A report by the American Bar Association released in January found Oregon has 31% of the public defenders it needs. Every existing attorney would have to work more than 26 hours a day during the work week to cover the caseload, the authors said.

The Oregon complaint focuses on four plaintiffs who have been without legal representation for more than six weeks, including a man who can’t afford his bail but has been jailed for 17 days without an attorney and can’t seek a bail hearing without representation.

In two other cases, the lawsuit alleges, plaintiffs were released from custody after their arrest and told to call a number to be assigned a defense attorney. They left voicemails and called repeatedly and have not had any reply, the complaint says. They show up for hearings alone and have their cases pushed back because no public defenders are available.

Jesse Merrithew, an attorney representing the plaintiffs, said not having legal representation right after an arrest causes a cascade of problems for criminal defendants that are almost impossible to overcome later on. One such example, he said, is the ability to secure any surveillance video that could back up the defendant’s case because looping security videos are often erased after days or weeks.

“The time directly after arrest is the most critical time, as any criminal defense lawyer will tell you, in the representation of a client,” he said. “It’s unacceptable to allow a delay in the employment of the council for weeks or months on end.”

The shortage of public defenders also disproportionately affects Black defendants, the lawsuit alleges. Studies in the Portland area in 2014 and 2019 showed that 98% and 97% of Black defendants, respectively, had court-appointed lawyers in those years, whereas 91% of White defendants had them.

In the current crisis, 23% of people waiting for an attorney were Black statewide on a recent day, despite the fact that Black people overall make up 3% of Oregon’s population.

The Oregon Justice Resource Center, a legal nonprofit representing the plaintiffs, said repairs to the system shouldn’t just focus on hiring more public defenders. Rethinking criminal defense should also mean reducing penalties and jail time for lower-level offenses and offering more alternative resolutions for crimes.

“The state’s failure in this regard requires urgent action. But the problem cannot be solved with more attorneys,” said Ben Haile, an attorney with the Oregon Justice Resource Center who is representing the plaintiffs. “There are effective alternatives to prosecution of many of the people caught up in the criminal justice system that would make the public far safer at lower cost and with less collateral damage to the families of people facing prosecution.”