Attorneys with the Oregon Department of Justice say a case that cuts at the heart of the state’s overwhelmed public defense system — and that’s currently before the Oregon Supreme Court — could be moot because the attorney at the center of the debate has left his job.
But they’ve stopped short of asking the justices to toss out the case.
Last month, Oregon Supreme Court justices heard oral arguments over whether trial court judges can force defense attorneys to take on new clients, even when those lawyers say they already have too many cases.
Tim Downin, an attorney with the Public Defender of Marion County, argued that they cannot during a legal proceeding in June before Marion County Circuit Court Judge Thomas Hart.
Hart was requiring Downin to take a case, but the public defender said he was so overworked he couldn’t provide constitutionally adequate defense to a new client. The judge told Downin that he had a legal obligation to protect the defendant’s rights by appointing a qualified attorney. And that attorney, Hart said, would be Downin.
The dispute landed before the Oregon Supreme Court.
Oregon Supreme Court in Salem, Ore., May 19, 2021.
Kristyna Wentz-Graff / OPB
After oral arguments at the state’s highest court last month, attorneys for the state said they learned Downin was stepping down from the Public Defender of Marion County — the “relator” in the case — and accepted a position as an appellate attorney with the Office of Public Defense Services.
“First, if Downin is no longer employed by relator, this case may be moot,” Deputy Solicitor General Paul Smith wrote in a court filing. If Downin is no longer working as a trial-level public defender in Marion County, Smith argued, “a decision by this court vacating the appointment may have no practical effect.”
Attorney Kristin Asai, who is representing the public defenders, stated in court documents filed this week that the case remains relevant, even though Downin is leaving.
“This proceeding is not moot because the key legal issues at its heart — whether the trial court erred by failing to defer to [the Public Defender of Marion County’s] representation that none of its attorneys had the ethical capacity to represent the defendant, and what guidance this Court should provide to trial courts when no public defender is available — remain pending,” Asai wrote.
Other attorneys say they have faced forced appointments, too.
During an August meeting before the Public Defense Services Commission, the group that oversees the state’s public defense agency, lawyer Michael Bertholf said he was appointed to a case in Douglas County.
“I was not consulted to see if I have the capability of taking the case. I have no clue on how I’m supposed to be compensated for the case,” he testified during the public meeting. “I think the worst part was I got calls from that client, and I had to tell him, ‘I’m sorry. I really cannot come and see you in the next week before your court appearance.’”
Shannon Wilson, executive director of the Public Defender of Marion County, stated in a declaration filed with the court this week that forced appointments and excessive caseloads were driving staff to quit.
“There is not a week that goes by where I do not have multiple attorneys communicating symptoms of burnout and severe mental health concerns,” Wilson wrote.
Wilson said judges in Marion County have threatened public defenders “with being taken into custody, comempt or bar complaints” if they object to an appointment or request to be removed as the attorney on a case “based on their ethical capacity.”
In his own declaration filed with the Oregon Supreme Court, Downin wrote that he was leaving the Public Defender of Marion County, in part, because of excessive caseloads and forced appointments from judges.
“The crushing workload has made it impossible for me to provide ethical representation to all of my clients, to adequately prepare for and defend their cases, and to remain happy in my position at [the Public Defender of Marion County],” Downin stated.
As an appellate attorney, Downin will be a state employee so his caseload should be lighter and not up to a circuit court judge.
The Oregon Supreme Court has the case under advisement and has not indicated when justices might issue a ruling.