Fri, 08 Dec 2023

PORTLAND (CN) - Can judges force a public defender to represent someone when they are at max capacity? That was the question before Oregon's Supreme Court, which will decide whether state courts can force appoint attorneys amid Oregon's ongoing shortage of public defenders.

Per the U.S. and Oregon Constitution, state judges appoint public defenders to those who have been accused of a crime but cannot afford their own lawyer. The situation is routine for organizations like Public Defender of Marion County, a non-profit law firm operating out of the state's capital of Salem.

The situation has become dire, though, given that Oregon lacks 69% of the full-time public defenders it needs, according to a 2022 report from the American Bar Association. Public Defender also points to broader issues of underfunding and understaffing within Oregon's judicial system for the last several years.

A year ago today, for example, Oregon's judicial department reported 897 individuals without legal representation. Today, this number has grown 234% with 3,000 unrepresented individuals and with 136 of those individuals currently in custody.

Tuesday afternoon, Public Defender attorney Kristin Asai of Holland & Knight brought the issue to the state's Supreme Court through a mandamus petition filed after a Marion County judge force appointed one of the organization's attorneys despite its objections during an April arraignment.

But the story goes back a bit further still.

In March, executive director of Public Defender, Shannon Wilson, asked the Marion County Circuit Court to allow the organization's public defenders to withdraw from pending cases, decline appointments while their caseloads are high and dismiss charges for those without court-appointed representation.

Wilson's motions reportedly argued that the organization's public defenders faced a backlog of incoming appointments from state judges, forcing them to violate their ethical and legal obligations by "expending their limited resources on one client at the expense of another, with neither client receiving the resources and time necessary for a proper constitutional defense," according to Oregon Public Broadcasting.

Marion County judges didn't budge, however, leading Wilson to file a petition for peremptory writ to Oregon's Supreme Court, seeking the reversal of the April appointment and the prevention of new ones. The high court's subsequent alternative writ of mandamus still did not resolve the underlying objections.

As noted by an amicus brief led by the American Civil Liberties Union of Oregon, the circuit court did not follow the Supreme Court's instruction to either vacate the appointment or show cause for otherwise.

"Now, Director Wilson is once again before this court and a comprehensive remedy is needed to ensure adequate relief and resolution of the issues raised here," ACLU Oregon writes.

More specifically, Asai argues that what Public Defenders desperately needs is "a clear rule" from the court stating that it is improper to force appoint defense attorneys when they are unable to provide adequate counsel.

That was after state Deputy Solicitor General Paul Smith reminded the court of the sweeping relief requested within Public Defender's initial motions back in March - relief he says would undermine Oregon's 2023 Legislature's efforts to pass Senate Bill 337, which provides more funding for public defenders for the next two years and, starting in January 2025, would restructure the delivery of those services.

To that, Asai pointed out how the mandamus is only about appointment decisions, not the other remedies sought in the March motions.

"This mandamus is about the court's force appointment of an attorney, despite the only evidence in the record being that no one, including this individual attorney, had the ethical ability to represent that client," Asai said, adding that Smith even admitted that the state has no authority to allow a trail court to force appoint an attorney in violation of their ethical obligations under the Oregon State Bar Association.

As for the other requested relief, Asai said Wilson had not requested the sweeping relief at the April arraignment and that it was proposed in earlier motions in recognition that, by not appointing an overworked public defender, there would be more unrepresented individuals.

Should the court grant Wilson relief, Asai said the court could separately set a framework by encouraging trial courts to collaborate with the state and public defenders to re-prioritize cases, or "if necessary, dismiss cases so that our public defenders can focus on the more serious crimes that are before them."

After making this point, Senior Justice Lynn Nakamoto asked Asai what the downside would be if the court accepted the state's suggestion of announcing a rule that gives trial courts broad discretion to appoint someone who objects on ethical grounds.

In response, Asai said the danger would be in that attorneys would be force appointed, just as they are in Marion County, and without providing effective legal representation to clients. The attorneys are also leaving the profession, Asai added, "which is further burdening the other attorneys there to take on and absorb their caseloads."

Source: Courthouse News Service

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