On March 15 the executive director of Public Defender of Marion County, Shannon Williams, asked to withdraw from a case at the Marion County Circuit Court, saying the public defense agency had too many cases to adequately represent their clients, breaching the American Bar Association's ethical standards.
"When a public defender says to a judge, I've got more cases than I can handle competently, that means I've got what we call in the law a concurrent conflict. It means every time I work for this client, I'm screwing that client and every time I work with that client, I'm screwing this client. And lawyers can't do that. It's against the law, it has been against the law for 50 years," said Stephen Hanlon, a lawyer who worked on a 2021 study on public defender caseloads in Oregon.
In 1963 Gideon v. Wainwright established that states must provide attorneys for people who couldn't afford one. However, the system is fraught and public defense budgets can be tight while caseloads are high. The ABA study Hanlon worked on estimated Oregon only had 31% of the public defense attorneys needed to adequately represent clients. There would need to be nearly 1,300 new attorneys to fill that gap. In Marion County the crisis is less pronounced than it is statewide. A study of caseloads indicated they needed more than 10 full-time attorneys to represent their clients.
Missouri attorneys took a similar approach to spur reform of the public defense system in 2012. Though it's taken time and plenty of litigation, Hanlon said there's progress in that state.
"We did that very successfully in Missouri, it took about 10 years of litigation and we ultimately got 53 new public defenders," Hanlon said. "That's not as much as we need, but it's a long way along the line, and we've established a precedent."
The evidentiary hearing in Marion County would investigate whether caseloads are, compared to the standards set out in the ABA's 2021 caseload study. If the hearing reveals there aren't enough attorneys to represent their clients, the motion by Public Defender of Marion County requests the courts dismiss cases with a priority for lower-level offenses. Joshua Krumholz, who is representing the Public Defender of Marion County, said it's likely that the decision of the evidentiary will be appealed.
"We think it's likely that whatever that ruling is, either party will appeal it. We think that, depending on what the ruling, there may be a right to appeal directly to the state Supreme Court. We view this ultimately as an issue that will have to be decided by the state Supreme Court," Krumholz said
The judicial system, however, has no ability to fund additional public defenders. The legislature or governor's office would have to become involved to fund new attorneys, but the court's decision could establish a precedent that cases can be dismissed based on the state's failure to provide representation.
In December the Legislature's Joint Emergency Board gave $10 million to the Oregon Public Defense Services to help address the shortage. Legislators have proposed several remedies to support Oregon's overworked public defenders this session. Senate Bill 817 would give people accused of low level crimes the opportunity to have their cases dismissed if they agree to counseling or community service. Senate Bill 413 would seek to attract new public defenders to Oregon by paying the student loans of public defenders. Both bills received a first reading and are scheduled for work sessions in April.
Oregon court data shows over 900 people are currently without representation, 88 of which are in custody. The crisis is most severe in Multnomah County, where nearly 400 people lack representation, followed by Linn (141), Washington (128) and Marion (61) counties. Deschutes County isn't as impacted as others, and there are no people facing criminal charges that are unrepresented as of Tuesday, March 21.
Deschutes County Defenders Executive Director Joel Wirtz said his office is faring about the same as it was last year when the ABA's study quantified the shortage. Wirtz said then that when attorneys are successfully defending a client, it takes time away from others, and that if he had three times as many attorneys working, the quality of work would improve across the board. He pointed to the spring of 2020 when COVID caused fewer cases to be processed, and public defenders were able to focus on their clients, achieving faster results. Krumholz said the motion filed in Marion County would make just as much sense somewhere else.
"It is certainly an issue across the state and frankly, an issue across the country. It could have been other places in Oregon, certainly," Krumholz said. "Director Wilson has shown courage to face these issues and address them. And they are somebody that we are happy to work with to try to address those issues. But it certainly is not a problem remotely limited to Marion County."
Civil rights attorneys have attempted to sue the state over inadequate public defense twice in the past year, though both were dismissed by their judges, according to OPB. The recent Marion County motion, however, is attached to an existing case, which has been shown to work in other states, according to Krumholz.
"This is a procedural posture that has been used with significant success in a few other states. But it's a relatively new procedural approach. And we think this approach allows the court the opportunity to act quickly and focus specifically on the issues that are important to courts, namely ethical compliance and constitutional compliance, and avoid some of the procedural issues that have made other cases challenging," Krumholz said.
