As many public defenders struggle to cope with excessive caseloads, others have tried to game the system, according to a memo released Tuesday by the Oregon Office of Public Defense Services.
The state agency that pays public defenders is reviewing contracts statewide, and said it will terminate relationships with the Madras Indigent Defense Consortium, or MIDC, and with public defender groups in Clackamas and Yamhill counties.
The end to the contracts shows widening cracks in Oregon's public defense system — a system that was called unconstitutional in a 2018 third-party review.
The Madras group had been assigned an average of 600 cases a year in Jefferson County, which experiences one of the highest poverty rates in Oregon, and has far and away the highest percentage of Native Americans.
“We have every reason to be concerned that this group is not providing good leadership in serving public defense in Jefferson County,” said Eric Deitrick, general counsel for OPDS and author of the memo.
The letter tells a sordid tale — of guns, drugs, sexual violence and suspected arson of a law office — allegations that center on a former Jefferson County public defender, William Carl, who was part of MIDC until October 2018.
“The events involving William Carl and the subsequent arson were never communicated to the agency, in violation of our contractual agreement,” the memo states, adding OPDS also found evidence of under-qualified representation.
The memo further alleges “the manipulation of caseload,” and “the harassment of court staff to achieve that end.”
In Oregon, public defenders at the trial court level are contract employees. They’re paid a flat fee per case, no matter the complexity. Some firms are private consortiums, while others are well-respected nonprofits. In Jefferson County, two groups were splitting the caseload.
“We were informed that MIDC attorneys were simply approaching clients and standing next to them during the arraignment, as some sort of show of authority that MIDC should be assigned the case,” the OPDS memo states.
MIDC’s lead attorney Tim Gassner called the allegations “absolutely false.” He said he was blindsided by the memo, and that he first read its claims after a reporter sent it to him Tuesday evening.
“I’m still processing here,” he said. “It’s incredibly frustrating that these lies are being promulgated against myself and my colleagues.”
Gassner said the state is “completely removed from the practical day-to-day operations of receiving court-appointed cases,” and he is appealing the contract termination to the Oregon Public Defense Services Commission, the board that approves OPDS contracts.
The OPDS review of public defense firms across the state is causing a reckoning, but no remedy for issues identified in a scathing 2018 report by the nonprofit Sixth Amendment Center, which found the state's system unconstitutional.
“I think there are serious problems in the way the constitutional right to counsel is provided within Oregon,” David Carroll, executive director of the Sixth Amendment Center, told OPB at the time. “I believe it’s time to re-evaluate how services are provided and there’s a need to do a lot of legislative changes.”
That report found that Oregon had insufficient oversight of attorneys contracted for public defense. It also accused the state’s system of encouraging attorneys to quickly turn cases instead of providing adequate counsel.
The state Legislature did not take action on a reform bill last session.
OPDS is also terminating the contracts of Independent Defenders, Inc. of Clackamas County, and the Justice Alliance Center of Yamhill County.
“The Clackamas Group we are abandoning largely because of quality,” Deitrick said. “And in Yamhill, it’s financial … in a way that was pretty egregious.”
The contract termination leaves Yamhill County without a public defender group. OPDS issued a formal request for proposals through Nov. 8.
For poor people accused of crimes in Jefferson County, their cases will shift to another group of attorneys. Deitrick said several have offices in Madras or in Prineville, about 30 miles away. Deitrick said attorneys from MIDC could end up joining the other group, or contracting with the state directly.
“While in theory the best practice would be to have a contract with every attorney, we don’t have the bandwidth to do that,” he said.
In the wake of the Sixth Amendment Center report and the Legislature’s failure to act, OPDS has swapped its usual two-year contracts for six-month agreements.
Over the last few months, it has been reviewing the quotas and asking attorneys to keep track of how much time they actually spend on cases.
“And we’re finding there are people who have found ways to make money off this system,” Deitrick said.