New Options to Help in Ongoing Court Appointed Attorney Crisis

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Few doubt the crucial role that court-appointed attorneys play in our criminal justice system. But people may not appreciate that they are a linchpin in the judicial system overall, the public safety system and our community. One need only look around to see tangible examples of how gaps in the public safety and health systems are affecting our neighborhoods. Public defenders are on the front lines where individuals with high risk, high acuity and high needs intersect with a productive and safe community. These intersections are where the justice system steps in to reduce risk. It cannot do so unless all of the necessary components are in place. There are many reasons why we find ourselves at this crisis, but the crux of it is that the numbers of people needing a public defender’s services, and the level of those individuals’ needs, significantly outpace the capacity.

There’s no single off ramp back to a fully-functioning public defense system. The legislature is working on financial and structural issues. Public defender agencies are working to stabilize staffing. Courts have engaged in significant process adjustments to support movement of cases. District Attorneys have been flexible and creative in case resolution. We’re more than a year in with ongoing vigorous efforts, but restoration and sustainability remain sadly elusive.

When the impact is viewed in its entirety, it becomes clear: We absolutely must resist routine denial of the fundamental constitutional right to a timely court-appointed attorney from being our “new normal.” The criminal justice arm of our legal system, while resilient, cannot accomplish this on its own. There is growing consensus that our legal community must bridge the traditional gulf between the criminal and civil practice areas to join together to adequately respond to the ongoing public defender shortage.

To this end, the Oregon Public Defense Services Commission (OPDS) has launched a new initiative, endorsed by the MBA.

The Supervised Civil Bar Attorney Initiative pairs experienced criminal defenders with civil practitioners. Participating civil firms sign a Memorandum of Understanding3 and designate attorneys for assignments and a liaison to work with a dedicated case assignment manager from OPDS. A participating civil attorney will be paid for their time, added on as an attorney of record, and be able to participate in all aspects of a case. Civil practitioners will assist in researching, writing and arguing various kinds of motions; work on issues in the rapidly developing area of electronic search and seizure; work on issues involving scientific and technical experts and admissibility of expert reports and opinions; and gain invaluable litigation and courtroom experience. They can also receive mentorship and training to develop trial advocacy skills. In turn, the criminal defender will gain critical capacity to take on additional cases they may not have otherwise been able to juggle.

Joining forces between the civil and criminal bars will resonate far beyond these tangible gains. Our community and leaders can be informed and inspired as lawyers work together to support the needs of our most vulnerable residents, giving life to the mission articulated by Justice Ruth Bader Ginsberg in 2014: “Lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities.”

A growing body of scientific evidence posits that in forests, trees of the same species are communal and form alliances with neighboring trees of other species. They communicate in underground fungal “mycorrhizal” networks to share water and nutrients, warn of dangers, and nurture saplings. They share a collective intelligence and develop cooperative, interdependent relationships. In doing so, they develop into thriving ecosystems, infinitely stronger together than alone. Certainly, in the face of the rents in the fabric of our justice system, we should aspire to do no less.

3 www.bit.ly/pdsc-mou