Thomas Ahern is a man of many problems.
He’s homeless, broke, bleeding from cuts and scrapes, and according to authorities in Portland and Washington County, has been caught inside stolen cars twice since late July — both leading to felony cases.
On top of all that, he doesn’t have a lawyer.
After biking two miles on a flat front tire to the Multnomah County Justice Center last week, Ahern appeared as scheduled before Circuit Judge Adrian Brown for his arraignment. Brown spent a few minutes explaining that no court-appointed attorneys were available, then ordered the 31-year-old to try his luck again in six weeks.
“The way our justice system is set up right now is a complete failure,” Ahern said through tears afterward as he went through his court paperwork on a downtown sidewalk. “The lawyers — it’s like they’re public pretenders.”
Ahern is one of 600 Multnomah County residents charged with a crime who has not been appointed an attorney, despite the Sixth Amendment guarantee that the state will provide criminal defense to those who cannot pay for it.
Across Oregon, roughly 1,300 defendants are caught up in the public defender shortage, their cases stuck in an indefinite holding pattern.
The trouble starts at arraignment, when defendants first hear the charges against them and normally have an attorney appointed to their case if they qualify financially. But if no attorney is available, the case can’t proceed, transforming rote hearings into a form of legal purgatory.
Multnomah County’s unrepresented defendants, most out of custody, make the fruitless trek into two drab downtown courtrooms — sometimes again and again — only to be told to return in a month or six weeks.
“It just makes life a lot harder,” said Alex Lewis, 31, who hitched a ride to court with his grandmother and son last Tuesday, only to learn his reckless driving case had been delayed due to the lack of defense attorneys.
“They should drop it and go chase the criminals,” he said of his case.
ATTORNEY SHORTAGE
The public defense emergency boils down to one basic problem: Not enough attorneys.
“We’re in a crisis,” Public Defense Services Commission Chair Per Ramfjord said during a Sept. 15 meeting. “We need to add capacity as quickly as we can.”
The commission oversees the Office of Public Defense Services, a statewide agency that oversees and disperses money to the nonprofit public defense firms, groups of private lawyers and solo attorneys who serve as public defenders.
In January 2021, the agency created a new model for paying for indigent defense — and, for the first time, capped the number of cases each attorney could be assigned.
The sharp increase in unrepresented defendants caught the attention of state officials that summer — a product of stubbornly high turnover rates, uncompetitive compensation and the new billing system.
The American Bar Association reported this past January that a complete fix would require 1,200 more public defenders, which would add enormous costs to the $350 million system. The Office of Public Defense Services’ own projections call for only a small number of new attorneys.
Most recently, the state office boosted pay rates for some attorneys with in-custody clients and released $7.5 million for training, supervision and to hire support staff this summer.
But law school grads considering public defense can still expect to earn more as a fresh-faced deputy district attorney or in many other legal roles, said Southwestern Oregon Public Defense Services Director Stacey Lowe.
“What we need to do is increase the pay so that the disparity is not laughable,” she said.
Her nine-attorney nonprofit has struggled to fill three vacancies, she said, and when new hires are found they must be supervised by an experienced attorney before taking on their own caseloads.
While pay rates vary, each full-time public defense attorney in Oregon now costs about $200,000 when accounting for salary, support staff and overhead, according to the American Bar Association.
Oregon has the equivalent of 600 full-time court-appointed attorneys, who have historically shouldered about 75,000 adult criminal cases a year. Drug decriminalization has lessened the burden somewhat.
State Rep. Paul Evans, D-Monmouth, who co-chairs a working group addressing the matter, said the Legislature may take up additional reforms in January, noting that lawmakers approved $100 million more for defenders in June.
“Among the challenges I have heard from public defense providers is how much work their attorneys have to spend each day on administrative, non-legal work for their clients,” Evans said in a statement. “The biggest challenge we are hearing about from providers is more about retaining attorneys.”
A lawsuit filed by six unrepresented defendants was dismissed by Circuit Judge Shelley Russell on Sept. 19 after state attorneys conceded the situation was dire but argued the solution was too complex to be implemented by the judicial branch.
The scarcity of attorneys has been under particular scrutiny since Oregon’s chief justice orchestrated the removal of Stephen Singer, the executive director of the Office of Public Defense Services. Critics said Singer failed to act with enough urgency during his almost yearlong tenure.
Others note that complaints of overwork and low pay among public defenders have been allowed to fester for years.
“Beyond just increasing pay … fundamentally it’s about the respect that folks feel they’re not getting in this role,” said Jennifer Parrish Taylor, one of the nine public defense commissioners.
CASES KEPT OPEN
At arraignments, Multnomah County deputy district attorneys consistently seek to keep unrepresented cases open, often highlighting that the defendant is out of custody and will have an attorney once the case moves forward.
Another part of their argument hinges on the presence of an arraignment-duty defense attorney inside the courtroom — a sort of legal shepherd who guides every defendant through the pro forma of entering a not-guilty plea that day.
The arraignment attorney represents each client only for a few minutes at a time and typically asks the judge to drop unrepresented cases entirely. For those moments, at least, the defendant does have access to a lawyer, albeit in an open courtroom.
“The solution is not to keep creating pending cases, but to start dismissing cases that are already pending,” attorney Edward LeClaire said during an arraignment session last week, advancing an argument he made for every defendant without counsel that day.
Such were the circumstances for John Dixon, who was on his second arraignment with no attorney appointed — the result of a 2-year-old case alleging the 29-year-old shoved a police officer during a protest.
Prosecutor Noah Berg objected to the motion to drop the charges, as he had with other defendants.
“Because he will be represented at every critical stage, Mr. Dixon is not unrepresented,” Berg said, repeating himself with slight variation.
Judge Rebecca Lease sided with the state and ordered Dixon to return for a third arraignment in 30 days. That will mean missing work and another awkward conversation with his boss, the factory tech said.
“I have to do my functions at work otherwise work doesn’t function correctly,” Dixon said. “Everybody who’s showing up here without representation is being pushed back some more and having their lives interrupted. It’s really unfair.”
Arraignment court is a far cry from the skyline views offered at the new central courthouse built by the Hawthorne Bridge.
Those lacking a court-appointed attorney troop through a side portal cut into the wooden barricades surrounding the Justice Center, located a few blocks from the gleaming courthouse. The Justice Center, the site of months of social justice protests two years ago, houses the maximum-security county jail, city police headquarters and several small courtrooms.
Inside, boards still shield the two-story glass atrium, casting an eerie half-light on the pale pink checkerboard tiles leading to the arraignment courtrooms. Crowds of people gather daily on the wooden benches at 9 a.m., awaiting their part in the proceedings.
“It just seems really unorganized, unprofessional — it’s a joke. There’s no real sense of justice at all,” said Dane Vegezzi, 37, who faces a criminal mischief charge.
Vegezzi was told last Tuesday that no court-appointed attorney was available for him. He got a new court date in 30 days.
HUNDREDS OF CASES DELAYED
As unrepresented cases have grown, state officials have struggled to keep an accurate tally.
The Oregon Judicial Department admits it had no standardized recordkeeping for the issue until Aug. 22 — just a month ago.
“Though the public defense system has been under stress for some time, those who had a right to counsel were consistently provided with a court-appointed lawyer” until last summer, said Todd Sprague, a spokesperson for the department.
Many people still do get a public defender at arraignments as court officials have triaged the situation by prioritizing defendants who are held in jail and those charged with more serious crimes.
But hundreds still face an uncertain future.
In Multnomah County, the court system delayed more than 700 unrepresented misdemeanor cases and 800 unrepresented felony cases from February through mid-August, according to an internally generated report.
Over the same time, only 13 misdemeanor cases were dismissed because of the lack of an available court-appointed defense lawyer, while 40 such felony cases were dismissed outright and 120 felony cases were eventually dismissed after being delayed.
About 1,400 warrants were issued after unrepresented defendants charged with a misdemeanor didn’t show up in court and about 560 warrants were issued for felony suspects.
While state law and the U.S. Constitution provide a right to a speedy trial, there is no specific rule governing how many times an unrepresented case may be set over before it must be dismissed.
“It is judicial discretion,” said Rachel McCarthy, a spokeswoman for Multnomah County courts.
In the meantime, unrepresented defendants like Yvonne Lane Marshall face the situation with grudging acquiescence.
Marshall, 53, is charged with being a felon in possession of a firearm after police say they found a gun in her car during a traffic stop. Her case was delayed six weeks ago and now is set over again until Halloween.
“I kind of expected this to happen, for there to be no attorney available,” she said. “There’s not a lot I can do.”
— Zane Sparling; zsparling@oregonian.com; 503-319-7083; @pdxzane
Our journalism needs your support. Please become a subscriber today at OregonLive.com/subscribe
Ad Choices