‘I’m so confused’: People without public defenders in Oregon speak out amid crisis

All of them were still presumed innocent. None of them had public defenders.

Each took turns standing up in front of the judge so he could tell them the same thing: "No attorneys," Smith recalled.

"They just keep doing that over and over and over every week," Smith said from jail Aug. 6. "Nobody seems to know what’s going on. All they know is they’re not lowering our bail, and we're not getting out.

"It just seems like they’re throwing us all into a pile and leaving us here."

Smith, who is accused of burglary and unauthorized use of a vehicle, spent more than 40 days in jail without an attorney — a violation of his Sixth Amendment right to counsel.

Hundreds of people are having that right violated every day in Oregon as the state grapples with a constitutional crisis in its criminal justice system. Historic underfunding, decades-old structural problems, a pandemic-driven case backlog and staffing shortages have pushed Oregon’s public defense system to its breaking point.

Public defense systems across the nation have faced similar problems, with a few states, such as Wisconsin, denying counsel entirely while others have public defenders who are so overwhelmed with cases they can’t represent clients effectively.

The situation is perhaps the most dire in Oregon.

Oregon only has about one-third of the public defenders it needs to adequately represent people, according to a January study from the American Bar Association. In recent months, the system has been so overwhelmed that cases are getting temporarily dismissed or perpetually delayed, leaving defendants in limbo and victims without justice.

On Friday, 1,352 people accused of crimes but too poor to afford attorneys did not have public defenders to represent them, according to the Oregon Circuit Court. Thirty-nine of them were in jail. The problem is less severe in Linn and Benton counties, which had no unrepresented people.

As they waited for an attorney, four unrepresented people told Lee Enterprises they experienced a host of consequences while navigating the Oregon legal system alone: They failed to get into treatment programs, felt confused during court hearings, were unable to argue for lower bails, lost jobs and apartments, and endured poor jail conditions.

"There's nobody available to advocate for their liberty interests while they're in custody,” Multnomah Defenders Executive Director Jessica Kampfe said. "There’s nobody who can file a motion for their release or move their case to a trial, so they can get it resolved. So they're just kind of sitting in limbo in the jail, which is pretty horrific."

A grievance 

Jared Hawkins, 34, spoke with a nurse through a food slot in the Douglas County Jail on Aug. 9. His face was about three times its normal size after a dentist at the jail "botched" a tooth removal, he said. The nurse had stopped by to drop off his medication while he was on the phone with a Lee Enterprises reporter.

"It looks like you’re swollen," the nurse told him through the slot. "I see it."

"I got no feeling," he said. "They pulled a tooth, and when she was trying to get one of the roots that got stuck, she sliced me about an inch. … I just filed a grievance."

"As you should," the nurse replied.

It worked, but the grievance doesn't undo the damage. Hawkins was approved to see an outside dentist, who said two of his nerves were severed, meaning he won't get feeling back, he said. He's had no attorney to help him through the process. 

For the past nearly three months in jail, Hawkins has had no attorney to argue for a bail he could afford, no one to file a motion for his release after his face swelled so much he got two black eyes, and no advocate to help file a complaint against the jail for medical malpractice. Hawkins had brief stints with a few attorneys, but they had to withdraw due to conflicts.

He has six open cases, but none of them are for violent offenses. Charges include theft, possessing a stolen vehicle, unauthorized use of a vehicle, computer crimes, identity theft and meth possession.

While in custody, Hawkins lost his job and the apartment he lived in with his wife because they couldn’t afford rent. She became homeless. As of Aug. 31, Hawkins was still in jail.

"If I had money, I'd be able to hire one of these $20,000 lawyers, and he’d have had me out already," he said. "But because I’m low income, I just have to sit."

System dysfunction

In May, six Oregon residents sued the state for failing to provide them with public defenders in their criminal cases. The residents had gone anywhere from 30 to 70 days without counsel, according to the lawsuit.

"If you get to the point where you are denying counsel entirely to people, that means the system is on the verge of completely breaking down,” said Jason Williamson, executive director of NYU’s Center on Race, Inequality and the Law, which helped file the lawsuit. "That means there aren’t enough lawyers in place for the system to function in the way it’s supposed to function. That is the definition of a constitutional crisis."

The class-action lawsuit, filed on behalf of all indigent Oregonians who haven't been able to get attorneys, demands the state either provide public defenders immediately or dismiss their criminal cases.

A sign of further dysfunction, the former executive director of the Office of Public Defense Services, Stephen Singer, was recently ousted from his role, drawing national attention. Critics said he was brash and combative on the job.

He didn’t go easily. When the commission that oversees the public defense office failed to remove Singer on a 4-4 vote, with one absence, Oregon Supreme Court Chief Justice Martha Walters took the extraordinary step of firing all commission members. She then reinstated five of them and appointed four new members, who successfully voted to fire Singer.

Williamson said the move was "shocking" and "vindictive." It also causes yet another delay in addressing the crisis as Singer is replaced.

Lost 'everything'

While Coos County’s Smith was in jail in early August, he lost about 10 pounds over seven weeks because of meager food portions. He even found cockroaches in his cereal.

Without an attorney, he had no one to argue for his release or start investigating his case while the prosecutor had a head start. There was no one to retrieve his cellphone from the jail, so he could get the numbers for his landlord, boss or family. He can only assume he lost his job.

"I already lost my housing, probably everything I own," Smith said at the time.

Smith finally got a public defender on Aug. 12. In just two weeks, the lawyer got him released from jail while he awaits trial.

Joel Burge, an Iraq combat veteran who has struggled with addiction stemming from drugs he was prescribed to treat his PTSD, went without an attorney from May to August. He was out of jail for that time but said he couldn't get into veterans court or addiction treatment without an attorney.

Burge has four open cases with charges including discharge of a firearm in a city, misdemeanor assault, theft and unlawful entry into a vehicle. He declined discussing those cases for fear of affecting his court proceedings but said previous convictions stemmed from his addiction and "stealing stuff to basically just survive."

He recently tried getting into a drug and alcohol treatment program, but when he called, staff said his lawyer needed to contact them for him to apply.

Burge was finally assigned an attorney Aug. 18, but he said having his cases linger was "extremely nerve-wracking." He lives in his car in Portland, and whenever someone on the street harasses him, he gets paranoid it's the police coming to arrest him for forgetting a court date. The experience has exacerbated his PTSD.

"I can’t tell you the amount of stress that it puts on me," he said.

'Impossible' job

Carl Macpherson, executive director of Metropolitan Public Defender, the largest nonprofit public defense provider in Oregon, said the state has "under-resourced public defense for decades," but COVID-19 made the problem even worse.

The pandemic stalled the court system, creating a huge backlog in cases. At the same time, public defenders continue to leave the profession because of low pay and an inability to serve their clients effectively.

Former Multnomah County public defender Martin Gibson quit Feb. 1 with no job lined up a few weeks after having a panic attack while looking at "mountains of files," including some cases he hadn’t even read.

"The job was impossibly too much to do. It wasn’t just difficult," Gibson said. "I had over 200 clients at one point. It watered down my representation to the point of ineffectiveness."

Crushing caseloads caused nonprofit public defense provider Multnomah Defenders, where Gibson worked, to stop taking new cases entirely from Feb. 7 through at least the start of the summer, Kampfe said.

Oregon has deep problems with its public defense system, but this is "the worst that it’s ever been," Shaun McCrea, director of the Oregon Criminal Defense Lawyers Association, said.

"We have been limping along for years with a system that was destined to fail," she said.

Working on solutions

Oregon is the only state in the nation that relies solely on fixed-fee contracts with attorneys to provide defense services. Instead of paying its own staff an hourly wage, the state outsources its public defense to nonprofit organizations, private law firms, groups of attorneys and some individual attorneys.

Jon Mosher, deputy director of the Sixth Amendment Center, said fixed-fee contracts are "universally banned by national standards" because they incentivize lawyers to take too many cases and do as little work as possible on each.

In a 2019 report, the center advised Oregon to abolish the contract system and instead pay attorneys hourly. The center also recommended the state create some government-run public defender offices.

So far, the state has "done neither," Mosher said.

Metropolitan Public Defender's Macpherson has gone so far as to suggest that prosecutors help shrink the legal system by charging fewer misdemeanors and nonviolent crimes.

But Washington County District Attorney Kevin Barton said that idea is "detached from reality and reckless." He said people need to be held accountable for their crimes.

The accused are not the only ones bearing the brunt of the crisis. Elisabeth Shepard, spokesperson for the Multnomah County District Attorney’s Office, said crime victims are also suffering.

"Individuals who have experienced a low-level property crime … still deserve justice for what they experienced, just like everyone else, and they still deserve restitution," she said.

Both Barton and Shepard said the legal system needs public defenders to function. Barton was supportive of paying them more. Shepard said the state should hire more public defenders and put more funding into the system.

Lawmakers formed a workgroup in May with representatives from the Legislature, the judicial system, public defense organizations and the governor’s office to address the public defense crisis, but the workgroup has faced criticism. 

Gibson said public defenders have been asking the Legislature for more support for years, but lawmakers “don’t seem to care.” A group of public defenders, including Lee Wachocki, protested outside of a June workgroup meeting, holding signs calling on lawmakers to take action. The workgroup meetings are not public, so the attorneys couldn’t come in.

“We’re locked out of a meeting to save our work,” Wachocki said.

But Rep. Paul Evans, D-Monmouth, one of the workgroup chairs, said they have been listening, which is why they formed the workgroup. He said the group wants to find a “sustainable” solution, rather than just “throwing money at a problem.”

The workgroup will consider restructuring Oregon's public defense system and make recommendations to the Legislature, said Sen. Floyd Prozanski, D-Eugene, the other chair.

"We realize we won’t have this done in two months, three months, six months. It’s going to take a longer period of time," Prozanski said, noting the group is also looking at "immediate needs" and ways to ensure people have counsel.

Since the Legislature is not in session until 2023, the responsibility for implementing short-term solutions falls primarily to the Office of Public Defense Services. In an emergency session in June, the Legislature allocated $100 million to the office to address the crisis. 

The majority of emergency-funded public defender positions will be coming online now through the fall, which should help, according to a Public Defense Services Commission agenda from July 2022. Another short-term action under consideration is raising compensation for attorneys taking public defense contracts. 

'So confused'

Edward Tellez, 22, has been in the Douglas County Jail since June 27 and was without an attorney from July 8 through last week. His new public defender has just started advocating for him.

Tellez wishes he could get released on bail so he could talk with his dad, who is dying of stage 4 colon cancer in prison in California. In July, the doctors gave Tellez’s father two months to live.

Tellez sent his dad a letter, but he can’t call to talk with him over the phone because neither can receive calls while incarcerated. Inmates can only make outgoing calls. Unrepresented at the time, Tellez asked the judge a few weeks ago if he could be released to contact his dad, but the judge said no.

Tellez was charged with felony-level assault in November 2020 for allegedly attacking a man, causing life-threatening injuries. Tellez told police he was protecting his little brother, and the man had a gun, according to the probable cause affidavit. Tellez has two other open cases with less serious charges.

Tellez skipped out on court for more than a year before getting arrested in June. About a week later his attorney stopped representing him.

This summer, Tellez said he has been to court about six times without an attorney and hasn’t always understood what’s happening. On Aug. 25, he said he believed the judge was going to make him go to trial in September without counsel, even though the case was actually delayed until he got an attorney. 

"I didn’t really get what he was saying in court," Tellez said of the judge. "I’m so confused about it."

As his case lingers on, Tellez has considered representing himself even though he knows it’s "a stupid move."

"I can’t wait to go and be able to stand up for myself, but it’s hard to know how to without an attorney," he said. "It’s for sure scary."