Shannon Wilson, a public defender in Marion County, filed an unusual request this week with the Oregon Supreme Court. They asked the state’s high court to remove some new clients and block lower court judges from assigning more.
Across Oregon, state court judges appoint cases to public defenders if the defendant cannot afford an attorney, protection granted under the Constitution. Wilson, who is the executive director of the Public Defender of Marion County, says they and their colleagues have been assigned too many clients to meet the ethical and legal obligations of defending those charged with crimes.
Wilson’s petition asks that the justices reverse some recent appointments of clients. Wilson also argues in the petition that the state’s high court should prevent judges from appointing new clients to attorneys who work at the Public Defender of Marion County because their caseloads are too high.
“The Oregon Constitution provides that indigent defendants have a right ‘not just to a lawyer in name only, but to a lawyer who provides adequate assistance,’” Wilson’s petition to the Oregon Supreme Court states. “When there are not enough hours in a day for a public defender to represent all of their clients properly, it no longer is a matter of prioritization; no amount of triaging or case reshuffling can solve the fundamental failures caused by excessive workloads.”
The petition out of Marion County comes at a time of turmoil for Oregon’s public defense system. For more than a year, Oregon has failed to follow the Constitution by not providing an attorney to everyone charged with a crime.
Oregon Supreme Court in Salem, Ore., May 19, 2021.
Kristyna Wentz-Graff / OPB
From mid-August to mid-March, more than 3,700 Oregonians who have been charged with crimes were unable to get a court-appointed lawyer, according to data compiled by the Judicial Department at OPB’s request.
Judges have allowed some of those people to remain in custody, unrepresented. They’ve also not dismissed cases for thousands more out of custody who have been charged with crimes and can’t afford an attorney.
Twice, judges in Multnomah County have dismissed civil rights cases brought by people who were charged with crimes and not given attorneys. Similar cases across the country have met a similar fate.
The legal effort playing out in Marion County is a novel approach, one that relies on data and focuses on the ethical and legal obligations of court-appointed attorneys, rather than the violation of constitutional rights of those charged with crimes.
The effort in Marion County first began in March when Wilson filed a motion to withdraw and hundreds of pages of exhibits to illustrate how the current caseloads of attorneys in their office made it impossible for them to meet their obligations as public defenders. Similar motions were filed in several cases of defendants represented by attorneys who work at Wilson’s firm. The filings requested an evidentiary hearing so Wilson could explain how they were able to determine that just 18 attorneys were doing the work of 29, and the ethical violations that entailed.
Despite requests in eight cases, at least six different judges in Marion County never scheduled the evidentiary hearings.
So they tried something different.
At the start of a routine court hearing on April 10, Wilson told the judge that lawyers in their office were unable to take on any new court-appointed clients. Wilson cited data that showed their nonprofit firm had roughly 60 percent of the lawyers needed. The result left attorneys time to “just triage cases.”
Wilson argued that appointing any of the 18 lawyers in their office would force that public defender “to engage in representation that would fall below the standards required by the Oregon rules of professional conduct.”
Marion County Pro Tem Judge Tiffany Underwood listened during the April 10th hearing and repeatedly noted Wilson’s objection for the record. But, time and time again, over those objections, Underwood appointed new clients to attorneys who work at the nonprofit Wilson runs.
The filing to the state’s high court notes that in 1979, the court sided with a public defender who was unable to take on appointments due to high caseloads.
Wilson is represented by Joshua Krumholz with Holland & Knight. Both declined to comment citing pending litigation. Attorneys for the state also did not return a request for comment on the petition.
As of Friday, the Oregon Judicial Department reported more than 1,400 people charged with crimes did not have a court-appointed lawyer. Of those, 221 were in custody.