Your Right to Legal Representation is No Longer Guaranteed

“If you do not have a lawyer, then your constitutional rights are being violated from the very beginning.” But that is where a great amount of people are today, without representation from a public defender.

By Alan Wagner

Oregon has shockingly failed to follow the laws of our country by not providing proper legal representation to people who cannot afford it. The Constitution of the United States clearly states in the sixth amendment all Americans have the right to an attorney in criminal proceedings. Anyone familiar with our legal system knows that attorneys are incredibly expensive. Many people do not have the many thousands of dollars needed to hire an attorney. That’s where public defenders are supposed to step in.

In America, unless you have money and I mean a lot of money you have very little chance at justice!

According to Gideon’s Promise website:

“80% of people accused of a crime are represented by a public defender. Despite this reality, prosecutors’ offices nationwide receive $3.5 billion more in annual funding than public defender offices.

57% of incarcerated men and 72% of incarcerated women were in poverty prior to their arrest. Still, many states are decreasing funding for the public defenders dedicated to protecting these people.”

Ruth Bader Ginsburg

To give further credence to the claim that there’s little justice in America without a lot of money, consider this quote from Supreme Court Justice Ruth Bader Ginsburg from April 9, 2001:

“I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty.”

Being under-defended by counsel leads to wrongful convictions. As pointed out in the Science article, More Than 4% of Death Row Inmates May Be Innocent by Sarah Williams, “One in 25 criminal defendants who have been handed a death sentence in the United States has likely been erroneously convicted. That number—4.1% to be exact—comes from a new analysis of more than 3 decades of data on death sentences and death row exonerations across the United States.”

Public defenders, under the law, must be provided to a person facing serious criminal charges. The right to an attorney is one of the fundamental rights included in the Miranda warnings that police must read to people during their arrest. So, during your arrest, you hear the words “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” But if you are in Oregon, this may or may not be true. It’s shocking to think that one of the first things you hear when you’re being arrested may end up being a lie.

Currently, in Oregon, the public defender system is so overwhelmed and underfunded that several hundred defendants don’t have legal representation at any given time. Oregon authorities are using COVID as an excuse and that is partially true, but the problem predates COVID. In 2019, attorneys picketed outside the state Capitol for higher pay and reduced caseloads. There was no action to remedy the situation. Then COVID came along and for a while, some courts were shut down. There were no felony or misdemeanor jury trials in April 2020 and access to the court system was greatly curtailed for months. This left many people accused of crimes languishing for months in custody if they couldn’t afford to pay for Oregon’s cash bail system. You could be innocent of a crime but unable to pay for bail, the courts are closed, and defense attorneys are not available. A lot of your rights as an American just ceased to exist and this problem continues.

Fred Dahr

According to Fred Dahr, a Texas Defense Attorney, in an article on his website:

“If you hired a lawyer, how many hours would you expect her to spend on your case? Forty hours? Twenty? Five? There is obviously no set answer since every case is unique. While there’s not a right or wrong answer to the maximum hours that ought to be put into every case, there is a definitely an argument for an inappropriate minimum.

What if you were told that your criminal defense lawyer could only work on your case for 7 minutes? You would be outraged, and rightfully so.

Unfortunately, in New Orleans, that number isn’t so far-fetched. According to a study, the average public defender in New Orleans only has 7 minutes to work on a person’s case.

You read that correctly. 7. Whole. Minutes.

Now that isn’t to say that all states are this understaffed. However, it needs to be noted that many states are completely under-funded and over-worked.

Things have become so bad in places like Fresno, CA, that lawsuits are being filed by the ACLU against the County, claiming that the offices are so understaffed that they cannot provide effective representation. The lawsuit cites statistics estimating the typical misdemeanor public defense attorney in Fresno averages 1,462 cases per year. The recommended caseload? No more than 400. That means that Fresno public defenders are taking on almost 4 times the recommended caseload, and still attempting to give effective representation for each person.”

According to an Associated Press (AP) report, some judges have dismissed cases, and some have threatened to hold the state public defender’s office in contempt for failing to provide lawyers for people unable to afford an attorney.

Carl Macpherson

Carl Macpherson is the executive director of Metropolitan Public Defender, a large Portland public defender firm. Macpherson has said there are now about 500 defendants going without public defenders statewide and that’s just the ones currently known. Macpherson continued, “If you do not have a lawyer, then your constitutional rights are being violated from the very beginning.”

This problem occurs in many states, as pointed out above, but in Oregon it is especially severe. The rights guaranteed to individuals under suspicion, criminal defendants, and prisoners are fundamental rights that protect all Americans from governmental abuse of power. But time and again now for many years, and now much worse during COVID, in Oregon those rights have been reduced or even denied. In addition to not being able to get a public defender or spending long periods in jail awaiting “due process”, just remember that Oregon was the last state in the nation to begrudgingly give up non-unanimous juries and only after being forced to by the Supreme Court.

As stated in the AP article:

“This is America’s dirty little secret: Thousands of people in courtrooms all across the country go to jail every single day without having talked to a lawyer,” said Jon Mosher, deputy director of the nonprofit Sixth Amendment Center.

An American Bar Association report released in January found Oregon has only 31% of the public defenders it needs.

Oregon State Senator Elizabeth Steiner Hayward said, “It’s horrifying. I don’t want to mince words about this. I am not going to make excuses for this.”

The situation also affects the victims of crime. Cassie Trahan, co-founder and executive director of an Oregon nonprofit that works with victims of sex trafficking, explained that trust in the judicial system, which already was greatly diminished, is at a new low. It’s an age-old problem that victims are reluctant to come forward as their confidence and trust in the legal system is low. Now victims see the dismissed cases due to a lack of a required public defender and they are even more reluctant to come forward.

According to the Associated Press, one victim in an upcoming trafficking case “lives in constant fear that it’s going to be dismissed.”

“In her mind, it’s like, ‘Now I’ve outed myself, now I’ve talked against him, and what’s going to happen if he gets off?’” Trahan said of the victim to the AP. “That’s what we’re seeing more of, especially in communities of color and groups that don’t trust the judicial system anyway.”

And that is a very important part of this discussion. The powers that be, the state legislators, are not the people who would ever avail themselves of the public defender system. So, as they’re not poor and they don’t have to personally face this situation, it’s not a priority. They can afford legal counsel. If it was more personal to them perhaps, they would care enough to solve the problem.

In March of 2022, the Oregon state legislative session ended with lawmakers allocating $12.8 million, enough to hire 36 full-time public defenders, for just some of the hardest-hit counties. Reps. Ron Noble, R-McMinnville, and Janelle Bynum, D-Clackamas, criticized the failure of lawmakers to invest enough to address the state’s shortage of public defenders. This led to Bynum voting no to the budget. “Our public defense system is in shambles,” Bynum said.

At current caseloads, the Oregon Office of Public Defense Services needs another 1,296 full-time equivalent defense lawyers, according to a January report by the ABA Standing Committee on Legal Aid and Indigent Defense. To provide effective assistance of counsel currently, all 592 contract public defense attorneys in Oregon would have to work 26.6 hours per working day to provide effective assistance of counsel, the report said. That is quite simply unacceptable. This report proves that many of the people with a public defender all have grounds for appeal for ineffective assistance of counsel.

So, the State legislature budgeted for 36 out of the 1,296 public defenders needed. That simply means the unconstitutional and illegal situation will continue for many years to come. The State government says they are going to have meetings and work on the problem, but if you look at any other issue in the history of the State of Oregon, meetings like this often do not result in anything positive and just go on for decades.

According to the AP article:

Autumn Shreve, government relations manager for the state Office of Public Defense Services, said the pandemic finally forced the hand of state lawmakers who haven’t taken a close look at public defenders in nearly 20 years.

“It’s been a rag-tag group of people trying to cover the caseloads year-to-year and because of that there’s been a lot of past papering over of problems,” she said.

The problem is they often say the same thing for many different problems in Oregon and those problems, more often than not, are seldom solved.

The situation in Oregon’s courtrooms continues to be horrific.

If you have a huge, complex case with many charges it will often be impossible to get a public defender qualified to handle a complex case. And those who handle misdemeanors are often young attorneys carrying 100 cases or more at a time. It’s important to understand, especially if you’ve never been in this situation yourself, that many people are innocent of at least some of the charges against them. By not providing proper legal counsel, we are in some cases denying the rights of innocent people.

“You can’t keep everything in your head when you have that many clients at the same time. Even things like, you know, ‘What’s your current plea offer?’ I can’t remember that for 100 people. Or I can’t remember, ‘What exactly does the police report say?’” Drew Flood, a public defender at Metropolitan Public Defender, told the AP.

Reading reviews of public defenders online it is common to read a review that says, “In court, the public defender didn’t even remember my name.” Often what will happen is the overwhelmed public defender will simply encourage you to take the first plea offer and wash their hands of you and move on to the next of the many cases they are assigned. They don’t have time or the resources to investigate the charges against you. Inadequate defenses are common and lead to many wrongful convictions. Proof of this is the national registry of exonerations which has 3,105 exonerations since 1989. This is 27,080 years lost to people who have often had an inadequate defense.

Michael Schmidt

This last March the Multnomah County District Attorney Michael Schmidt in Portland said in an op-ed, “Two weeks ago, and over my objection, a circuit court judge dismissed three cases that ranged from felony-level property crimes to serious domestic violence charges, including strangulation. The cases were dismissed because there was no public defender available to assign to them. As of now, more than 150 felony cases in Multnomah County are in limbo for lack of a public defender, unable to be fully prosecuted without violating the Constitution.”

And that’s just the felonies. And people wonder why there is such an increase in crime. The State of Oregon continues to promise to fix the problem and then they fund 36 new public defenders when 1,296 are needed. You might say that there’s not enough money in the budget. But according to the Oregon Accountability Project, Oregon state agencies have wasted hundreds of millions of dollars under Governor Brown’s watch, from $300 million on a Cover Oregon website that never worked to nearly $300 million in Medicare payments to ineligible patients. And many millions more in unemployment fraud during COVID.

It’s time the band aids and lip service on fixing the broken Oregon legal system ended. But this is the state of Oregon’s legal system in 2022 and it’s not going to be fixed anytime soon. It’s a national embarrassment.

How dare the United States chastise other countries for their human rights abuses when we continue to deny very large segments of our population, namely the poor, an adequate defense as guaranteed by the Constitution and so callously disregarded by so many states.

Editor’s Note: While the government protections of the people is waning, we here at the US~Observer stand ready to assist and defend the innocent. With our investigative skills and legal defense strategies, our ability to aid those being falsely prosecuted is unparalleled.

Should you wish to help those less fortunate, donate to the US~Observer’s indigent defense fund, and the US~Observer will fight for those who could otherwise not afford to fight for themselves. Contact editor@usobserver.com to set-up your donation.