Marion County judges will start deciding if public defenders have time to take new cases 

Public defenders appointed by judges to represent Oregonians facing criminal charges can decline new cases if they’re too busy to take them on.

That’s about to change in Marion County.

The county’s circuit court judges have decided they will soon start determining themselves if a public defender is able to take on a new client and ethically represent them.

The decision is intended to reduce the number of people who don’t have an attorney representing them against criminal charges in Marion County as the state confronts a shortage of public defenders which has created a constitutional crisis. 

But local public defense leaders, who have described the idea as “forced appointments,” say it could backfire if their overburdened colleagues leave the county or public defense altogether. That would mean even more criminal defendants lack representation. 

The new system could also result in more criminal cases being delayed or dismissed, according to Shannon Wilson, executive director of Public Defenders of Marion County. 

People charged with a crime have a constitutional right to be represented by a lawyer.

“Giving someone an attorney that’s overwhelmed, you’re not really giving them an attorney at all. You’re just kind of like sweeping it under the rug of a piece of paper with an attorney’s name on it,” Wilson said. “That person is not going to be adequately represented.”

Wilson said the “forced appointments” were slated to begin this week but still hadn’t started as of Thursday afternoon.

Tracy Prall, the presiding judge of the Marion County Circuit Court, said in a Feb. 24 email to public defenders and Marion County District Attorney Paige Clarkson that defendants in nearly 800 local criminal cases currently don’t have a lawyer. 

Most local court-appointed lawyers are part of either Public Defenders of Marion County or Marion County Association of Defenders. Both organizations contract with the Oregon Public Defense Commission, which assigns criminal defense lawyers to represent people who can’t afford to hire one. 

Prall said in the email that Marion County judges will stop appointing the public defense commission to find lawyers case by case. 

Instead, the two local organizations it contracts with will need to provide the names of available lawyers. If none are available, the judge will review the caseloads of attorneys under contract and select one “that appears to have capacity,” Prall said in the email.

Prall wrote that she and her fellow judges made the decision after meeting on Feb. 21 to discuss Marion County’s “unrepresented crisis.”

Wilson is not aware of any other Oregon counties which have put such a procedure in place.

In a March 4 news release, Public Defenders of Marion County cited state data which showed nearly 90% of people facing charges in Oregon qualify for a public defender. “With forced appointments, cases technically proceed through the system without adequate legal counsel, increasing the risk of wrongful conviction and excessive sentence,” it wrote in the joint statement.

The organization’s attorneys raise issues with prosecutors’ cases within the first few months, “but the DA does not seem to assess or review their case files until the week prior to or even the night before the trial,” Wilson said. “We aren’t sure why that is but it eats up almost half of (Public Defenders of Marion County’s) resources. If we could free up limited public defender resources earlier, we would be able to take on new clients sooner.”

Marion County prosecutors, like those across the state, are currently filing fewer criminal cases than they were in 2017, “when there was no apparent crisis,” according to Marion County Chief Deputy District Attorney Brendan Murphy.

The state public defense commission sets a limit for the number of cases an attorney under contract can take on at once. In an email, Murphy cited commission data showing that Public Defenders of Marion County currently operates at 59% of that limit, which he described as “by far the lowest in the state.” 

Murphy said that includes defendants who have a warrant for their arrest or have been found unable to aid in their defense due to a mental illness. “In these cases, no legal work is occurring on the criminal case. This is likely why our bench feels it must resort to extraordinary measures to ensure that defense attorneys meet their obligation to those charged with crimes,” he said.

“Blaming district attorneys for this issue is like blaming the coastal sand for being wet,” said Clarkson, the district attorney, in an email. “There are forces here that we don’t control. We are simply responding to what is happening in our communities and holding up our obligation to keep us all safe. The Marion County bench is asking (Public Defenders of Marion County) to uphold theirs.”

Wilson said the organization’s misdemeanor attorneys are currently handling 50-60 cases at once.

There are “evidence-based standards,” for determining if an attorney is able to adequately represent additional clients, Wilson said, but the wide range of factors involved – such as the amount of evidence, the number of witnesses involved and the seriousness of the crime – make it difficult to put a general number on how many cases are too many.

“You can’t measure an attorney’s workload on a per-case basis, and you also can’t pay them on a per-case basis,” Wilson said. “That’s not comprehensive enough to determine compensation or what the actual work is that’s being done.”

There are also times when attorneys seek to back out in the middle of a case, often due to a breakdown in the relationship with their client. Wilson said the new rules will likely result in judges more often refusing to let them do so.

“We have not made smart decisions as far as investing in the development of public defenders in Oregon,” according to Wilson.

Wilson said most state funding spent on public defenders has been limited to a program which incentivizes lawyers to take on criminal cases by paying them a higher hourly rate, rather than on programs that focus on training young lawyers and recruiting from out of state. 

“Oregon needs more public defenders, and forcing attorneys to take unreasonable caseloads only drives turnover and burnout,” said Stacey Lowe, president of the nonprofit Public Defenders of Oregon, in the joint statement. “The solution is straightforward: competitive salaries and reasonable workloads to retain experienced defenders who can recruit, train and mentor the next generation of public defense attorneys.”

Marion County judges tried the so-called “forced appointments” for about seven months in 2023 but temporarily stopped after the Oregon Supreme Court set a hearing to decide whether they should be allowed.

Public Defenders of Marion County at the time lost 13 of its attorneys, over 60%, “because of the forced appointments and all the division and all the stress that that created,” Wilson said. 

Some attorneys left to practice in a different county or decided they were done with public defense. Currently, most of the organization’s attorneys are first-year lawyers or experienced ones who are new to the state.

Since the 2023 experiment, Wilson said their organization has worked with Prall to create a system where its attorneys review their workload and decide if there is space to squeeze in another client. If not, the attorneys would let the court know in a report. 

Now that the appointment process is changing again, Wilson said some of the attorneys in their office are anxious. 

“They love representing their clients, they like being able to actually be an attorney for folks that can’t afford it and they’re really mission driven, passionate folks that believe in the notion of justice,” Wilson said. “But when circumstances or conditions are such that you can’t actually practice law, an ethical attorney has to make a decision to go practice somewhere else.”

Wilson said they will then have to focus on recruiting more attorneys fresh out of law school or new to Oregon, who would need significant training and wouldn’t be able to handle as many cases as someone who has been practicing with the organization for years.

“That is detrimental, because we aren’t able to help as many people as we could had we retained the really experienced defenders that we had,” Wilson said.

Contact reporter Ardeshir Tabrizian: [email protected] or 503-929-3053.

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