(Caleb Wolf/Special to Salem Reporter)

Marion County’s presiding judge said the state’s public defense office must more rapidly appoint attorneys to represent indigent defendants or face being held in contempt.

In a letter to Stephen Singer, executive director of the state Office of Public Defense Services, Circuit Judge Tracy Prall said the agency since May has failed to identify attorneys available to represent people charged with crimes before their next court appearance.

Prall’s letter comes at a time when Marion County and the rest of the state faces a crisis over a shortage of public defenders. Defendants who can’t afford their own attorneys are entitled to publicly-paid counsel but there are not enough attorneys handling such work.

The public defense office oversees about 600 public defenders in Oregon and is responsible for arranging with private attorneys and nonprofit law firms to provide representation.

If no private attorneys are available to take defendants needing representation, Prall wrote that public defense office will have until the next court date for a defendant to identify a suitable lawyer. If it fails to do so, a judge will require the agency to explain to a judge why it shouldn’t be found in contempt.

Contempt proceedings are a way for judges to enforce court orders that weren’t being obeyed. Contempt is not considered a crime under Oregon law but still can result in fines and jail time.

Prall wrote in her letter that Marion County has been experiencing a shortage of defense attorneys over the past nine months, with many defense attorneys leaving the area or the practice of law during the pandemic.

The letter was first shared on Twitter by Noelle Crombie of The Oregonian/OregonLive.

Local public defenders initially “were able to cobble together” plans to cover criminal cases, Prall wrote. But by October 2021, there were no longer enough contracted defense attorneys to cover felony cases in the county.

To reduce the backlog in felony cases and increase capacity for new cases, the Marion County Circuit Court in October for the first time scheduled settlement conferences inside the Marion County Jail, Prall’s letter said.

Any person in custody that agreed to a plea deal was taken to the courtroom attached to the jail for a judge to accept the plea and sentence them.

“While these settlement conferences were tremendously successful and we were able to create some additional capacity, we quickly found it was not enough,” Prall wrote.

In November 2021, she started working with the Office of Public Defense Services as well as local public defense organizations to ensure everyone charged with a crime in Marion County can promptly be represented by an attorney.

The court regularly shared a list of people needing a lawyer with the state agency. Most of them were cases involving people who had been released from jail “but we were beginning to struggle to timely find attorneys for in-custody defendants,” she wrote. 

To reduce that caseload, judges conducted another round of settlement conferences at the jail, and again in March.

“While the settlement conferences resulted in an over 70% settlement rate, we could still not keep up with the rising felony case load,” she wrote. “Additional attorneys announced they were leaving our local bar to practice elsewhere or retire.”

Prall recalled telling Singer at an April 22 meeting that Marion County was still struggling to find attorneys to take felony cases and asked how his agency planned to ensure representation for all those charged in counties most affected by the shortage. She specifically asked what would be done between then and June 30.

“No solutions were proposed at that time,” she wrote.

By May, the agency was no longer able to identify available attorneys for people in custody, leaving the court to tell the defendants that a lawyer hadn’t been identified and their case would be postponed.

Judges learned in late May they wouldn’t have attorneys available to accept felony appointments out of 22 days in June, Prall wrote.

Marion County had 15 people in custody without a lawyer by early June, two of whom had been jail for almost 30 days.

They had been arraigned and attended at least one other court appearance before a judge without a court-appointed attorney. 

“This has been an untenable situation,” Prall wrote.

In early June, Judge Jennifer Gardiner, handling the Marion County Criminal Court Annex, started appointing the Office of Public Defense Services staff attorneys, including those who work on appeals, to handle criminal cases  “as OPDS had failed to identify any suitable attorney or make any effort to appear on behalf of the in-custody defendants,” she wrote. “We have stopped that practice for now.”

She said going forward, judge will consider the state agency’s failure to identify attorneys for a case to mean none are available for appointment on that case. If the agency doesn’t provide a list of available contract attorneys by 1:30 p.m. on any day, the court will appoint private attorneys on an hourly basis.

If a private attorney isn’t available for appointment, the agency will have until the next court date to find an attorney – roughly seven days from the initial court appearance for those in custody, and 30 days for those out of custody. If that doesn’t happen, contempt actions will be considered, she wrote.

In a second letter on Tuesday, Prall thanked Singer for responding to her previous letter. 

An assistant for Singer declined to comment on the letter and did not address a request for a copy of his response to Prall.

“You indicated that you were still unclear about what the judges were expecting from you and OPDS,” Prall wrote to Singer. “The judges of the Marion County bench are complying with their constitutional and statutory obligations to appoint suitable counsel to indigent defendants. We are only asking that you, as the director of OPDS, do the same.”

Prall asked that Springer clarify who he has employed or contracted with that will represent indigent defendants in Marion County, saying, “The list you previously sent was not a list of attorneys available for appointment, and so is incomplete and insufficient.”

“We continue to be willing to work with you, but we and the defendants being held in custody without lawyers need solutions, not barriers,” she wrote.

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

JUST THE FACTS, FOR SALEM - We report on your community with care and depth, fairness and accuracy. Get local news that matters to you. Subscribe to Salem Reporter starting at $5 a month. Click I want to subscribe!