Oregon’s public defense crisis lands at state Supreme Court

Oregon’s spiraling public defense crisis has finally landed at the state’s highest court.

The U.S. and Oregon constitutions both guarantee the right to effective counsel for anyone charged with a crime who cannot afford a defense attorney. For nearly the last two years in Oregon, that’s not been happening. Instead, the protections of many charged with crimes are violated, every day.

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

A group of public defenders from Marion County asked the Oregon Supreme Court whether trial court judges can force an attorney to take an indigent defendant’s case. As part of the case, the justices will have to balance the legal protections for a person charged with a crime against the ethical obligations of a public defender.

Some Circuit Court judges in Marion County have forced attorneys to take new clients even when the lawyers say they’re too overwhelmed to do their jobs effectively. Providing a defendant with an overworked public defender, the lawyers say, is effectively denying them their constitutional right to adequate counsel.

The judges argue they have an obligation to protect a defendant’s rights by appointing an attorney. They say it’s the only way for a case to move forward, even if the lawyer assigned to the case objects.

The Marion County case

The Oregon Supreme Court is considering a case that began on April 10, in a Marion County courtroom when Shannon Wilson, director of the nonprofit Public Defenders of Marion County, told a judge their staff of public defenders couldn’t take on any more new cases.

“We are providing a notice to the court that we have reached our capacity and also objecting to any court appointments,” Wilson said that day in court.

At the time, Wilson said the nonprofit’s staff of 18 was handling the workload of nearly 30 attorneys. That meant they could not meet their obligations to clients, which includes performing such basic work as investigating the case before recommending whether to go to trial or plead guilty to certain charges.

“I am responsible for the ethical violations by those attorneys that I supervise and I must take remedial action,” Wilson said at the hearing. “Because of current caseloads, all attorneys at [Public Defender of Marion County], including myself, are unable to provide Constitutionally sufficient representation to new individuals facing criminal charges.”

Related: Marion County public defense leader asks Oregon Supreme Court to lessen caseloads

As the hearing continued, Marion County Pro Tem Judge Tiffany Underwood turned to the case of Izell Guajardo-McClinton, who faced felony charges, including sexual abuse and unlawful use of a weapon.

“You do qualify for a court-appointed attorney,” Underwood told him.

Minutes later – and despite Wilson’s objection – Underwood told Guajardo-McClinton his attorney would in fact be someone from Wilson’s office.

“Over the public defender of Marion County’s objection, I am going to appoint Tim Downin to represent you,” Underwood said. “So your attorney is Mr. Downin.”

Wilson’s firm appealed the appointment. In a preliminary ruling in June, the Oregon Supreme Court sided with the public defenders. They demanded that the Marion County courts either toss out their order appointing Downin – or argue their reasons for not doing that to the state supreme court.

Marion County Circuit Court Judge Thomas Hart told Downin during a hearing in late June that he wouldn’t comply with the Supreme Court’s order.

Hart said that Guajardo-McClinton is charged with serious crimes and cannot afford an attorney. And as a judge, Hart explained his legal obligation is to protect the defendant’s rights and appoint a qualified attorney.

“And you’re qualified, you’ve been appointed,” Hart told Downin. “This individual, in a lot of ways, has a way higher right under the constitution.”

Hart said Downin would have to take Guajardo-McClinton’s case, setting the stage for Tuesday’s Supreme Court arguments.

“This is not the way we want to practice in Marion County,” Hart added. “The answer is I’ve shown cause and you can argue to the Supreme Court. You guys are making a lot of money. You ought to work for it.”

“That’s pretty insulting your honor,” Downin replied.

Arguments to the court

Among other things, the Public Defenders of Marion County want the Supreme Court to prevent judges from being able to force attorneys to take cases when they say they don’t have the capacity.

“Oregon lawyers - any Oregon lawyer, public defender, whatever – are prohibited from taking on more cases, more clients than they can competently represent. That’s been the law for 50 years,” said Stephen Hanlon, a national public defense expert who helped coordinate the case that public defenders in Marion County are now arguing before the justices.

Hanlon said it’s common knowledge that public defenders have more work than they can handle. The danger of high caseloads, Hanlon argued, is that it can leave public defenders struggling to establish their client’s trust or develop exculpatory evidence.

“They just can’t do that,” Hanlon said. “It’s impossible.”

Hanlon points to an American Bar Association report issued last year that found Oregon’s public defense system has less than one-third of the attorneys the state needs to adequately represent criminal defendants. The report found Oregon had the equivalent of 592 full-time public defenders, but needs 1,888 to meet the current caseload. That translates into a 69% shortfall, or a shortage of 1,296 public defenders.

Attorneys with the Oregon Department of Justice are representing the interests of the state. In their brief to the Supreme Court, the state’s attorneys argue Hart, and other judges who appoint attorneys to indigent cases, are not exceeding their authority.

“Trial courts, which have the ultimate responsibility for protecting a criminal defendant’s constitutional right to counsel, may determine whether the lawyers they are appointing have the capacity to take the case,” Deputy Solicitor General Paul Smith wrote. “They are not required to defer to lawyers’ bare assertions that they cannot.”

Oral arguments are set to begin at 1:30 p.m. Tuesday. The hearing can be viewed live here.