New Options to Help in Ongoing Court Appointed Attorney Crisis

by Hon.

The right to appointed counsel for those who cannot afford one has been a universal constitutional right in state cases only since the US Supreme Court issued the landmark decision Gideon v. Wainwright, 327 US 336, in 1963. Though in place only a relatively short period of time since legal rights were recognized 800 years ago, that right is perhaps the most important evolution in the fabric of modern criminal jurisprudence. Our criminal justice system is now structured with this fundamental precept at its center. ORS 135.045 codifies this right by requiring a court at the time of arraignment to determine whether the defendant wishes to be represented by counsel and, if so, to appoint counsel for anyone financially eligible.

And so it has been, day in and day out for many decades, that Oregon courts have stood at the nexus of ensuring competent counsel for all who face the rigors of criminal prosecution and the loss of liberty - until this fundamental constitutional right, long overburdened, began a significant unraveling now well into its second year.

As Chief Criminal Judge for Multnomah County, I manage the court processes involved in appointing attorneys. I first started noticing in the summer of 2021 the lengthening delays to find new attorneys to take on clients following a substitution. A significant percentage of substitution hearings involve people in custody on very serious charges. The delays over the summer and fall continued to increase and to my great dismay, the weeks turned to months by the end of the year. These cases require substantial investigation, negotiation and preparation, all of which stall as the person languishes in jail waiting for an attorney. Victims are left with their own constitutional rights diminishing or even vanishing altogether.

On January 10, 2022, Metropolitan Public Defender (MPD) announced it would not be able to accept new appointments in minor felonies (generally non-Measure 11 felonies) for several weeks. Multnomah Defenders, Inc. (MDI) followed a few weeks later. They were following ethics opinions and new case counting standards adopted by the Oregon Office of Public Defense Services in response to a recommendation from a legislative-commissioned evaluation by the Sixth Amendment Center.1 Exacerbated by case delays experienced during the pandemic and accelerating staff turnover, case counts exceeded what the agencies say they ethically could accommodate.

Disruptions in public defense services are not exactly unfamiliar. A recession-generated revenue shortfall late in the 2001-2003 biennium led to drastic cuts that postponed appointments in all misdemeanors and minor felonies for the last few months of the biennium. Public defender challenges have persisted across many jurisdictions for many years as detailed in various reports by the ABA Standing Committee on Legal Aid and Indigent Defense, including its most recent report, an analysis of attorney workload standards in Oregon in 2022.2

When faced with the challenge in early 2022, local criminal justice system stakeholders scrambled. Minor felonies represent the majority of Multnomah County’s criminal cases. We collaborated to keep the system functioning as much as possible. Attorneys in other counties stepped up. Local consortium members absorbed what they could. Many cases, including major felonies and person crimes, continued to receive attorney appointments.

Public defenders are on the front lines where individuals with high risk, high acuity and high needs intersect with a productive and safe community.

We hoped we would be back on track with all appointments within a few weeks, or at the longest, a few months. It wasn’t long before optimism gave way to resignation then to bleak reality. The numbers tell the story. In December 2021, there were 60 people throughout the state who were unrepresented, 19 in custody. In early March, there were 780 unrepresented people, 71 in custody. In Multnomah County in early March, there were 382 people out of custody waiting for attorneys and 11 people in custody. This does not include people in warrant status, 567 in Multnomah County, or the hundreds more waiting in the wings to be charged pending better availability of attorneys.

1 www.bit.ly/6ac-report

2 www.bit.ly/sclaid-report

Due to the COVID-19 pandemic, the MBA will be offering all seminars ONLINE ONLY unless otherwise listed. To register for a CLE seminar, please see p. 3 or visit www.mbabar.org/cle and input your OSB number to register at the member rate.

4.4 Tuesday Residential and Commercial Foreclosures in Oregon

Hope Del Carlo Tony Kullen

4.5 Wednesday

Judicial Notice

Judge Teresa H. Pearson

Judge Katharine von Ter Stegge

4.6 Thursday

Racism in Oregon History: A Brief Overview

Eliza Cany-Jones

Kerry Tymchuck

4.10 Monday

Arbitrations in Oregon: The What, Where, Why, and How A.C. Estacio-Heilich

Brad Krupicka

Heather St. Clair

4.12 Wednesday

State and Local Initiative Process

Justice Stephen K. Bushong

Steve Berman

Katherine Thomas

4.18 Tuesday

Ethical Duties Concerning Self-Represented Litigants

Judge Christopher Ramras

Nellie Q. Barnard

4.19 Wednesday

Family Law Update

Judge Susan M. Svetkey

Patricia Arjun

Amy Fassler

4.25 Tuesday

Crisis Communications: Helping Your Clients Survive Both in the Court of Law and in the Court of Public Opinion

Jenna Cooper

Tim Resch

Dave Thompson

Multnomah Lawyer

MBA Board of Directors

President Tim Resch

Secretary and President-Elect

Theresa L. Wright

Treasurer

John Robb

Past President

Jovita T. Wang

Directors

YLS President

Nikki Abercrombie

Austin Batalden

Matthew D. Colley

Sherisa Davis-Larry

Eryn Karpinski Hoerster

Brad Krupicka

Hansary Laforest

Aruna Masih

Gloria J. Trainor

Shalini Vivek

Executive Director

Guy Walden

Director, Events & Programs

Kathy Modie

Office & Foundation

Administrator

Pamela Hubbs

Member Services Administrator

Ryan Mosier

Program Coordinator

Pao Vang

MBF Board of Directors

President Joseph L. Franco

Vice President

Tyler J. Volm

Secretary/Treasurer

Yoona Park

Past President

Victoria Blachly

Directors

David I. Bean

Danielle L. Fischer

Pilar C. French

Hon. Amy Holmes Hehn

Anit K. Jindal

Leah C. Lively

Bob Steringer

June M. Wiyrick Flores

The MULTNOMAH LAWYER is published 11 times per year by the Multnomah Bar Association, 620 SW Fifth Ave. Ste. 1220, Portland, OR 97204 503.222.3275

Advertising is accepted; advertisers(ments) are not necessarily endorsed by the MBA. The editor reserves the right to reject any advertisement.

DEADLINE for copy: The 10th of the month*

DEADLINE for display ads: The 12th of the month*

*or the preceding Friday, if on a weekend.

NEWSLETTER STAFF CONTACTS

Editor: Guy Walden

Display Advertising: Ryan Mosier

Classified Advertising: Pao Vang

Design: Cyrano Marketing Solutions

Copyright Multnomah Bar Association 2023