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Civil rights attorneys make 2nd attempt to sue Oregon over public defense failures

A file photo of the Multnomah County Justice Center in downtown Portland, which houses a jail and four courtrooms. A lawsuit filed Wednesday in Multnomah County Court is seeking class-action status over Oregon's failure to provide defense attorneys to people charged with crimes and unable to afford a lawyer.
Amanda Troxler
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A file photo of the Multnomah County Justice Center in downtown Portland, which houses a jail and four courtrooms. A lawsuit filed Wednesday in Multnomah County Court is seeking class-action status over Oregon's failure to provide defense attorneys to people charged with crimes and unable to afford a lawyer.

Oregon is once again being sued over the state’s troubled public defense system that’s left hundreds of people facing criminal charges without the court-appointed attorneys that they’re entitled to under the U.S. Constitution.

As of Wednesday, roughly 831 people in Oregon were facing criminal charges without attorneys, according to the Oregon Judicial Department. Of those, 45 people were in custody without an attorney.

This is the second attempt this year by civil rights attorneys to sue the state over its failure to provide attorneys, “in clear violation of basic standards of justice and long-settled state and federal law,” as the most recent lawsuit states. The original lawsuit was dismissed after a judge ruled that she didn’t have jurisdiction to even hear the case, let alone determine it was a class action. She was also unwilling to make a declaration that the defendants’ rights were being violated.

Like the previous lawsuit, this new complaint was filed by attorneys working with the nonprofit Oregon Justice Resource Center. It was filed on Wednesday in Multnomah County Circuit Court on behalf of four defendants charged with crimes and who cannot afford an attorney. Despite the four asking for public defenders to handle their cases, the lawsuit states, Oregon did not appoint attorneys for any of them.

In addition to the state of Oregon, the lawsuit names Jessica Kampfe, who was hired less than a week ago to be the next executive director of the Office of Public Defense Services, the state agency responsible for indigent defense. It also names all nine members of the Public Defense Services Commission, the board that oversees the state agency.

The lawsuit asks a judge — who has not yet been assigned to the case — to find that the rights of people charged with crimes and denied a public defender are “being violated day after day, month after month.” And it asks that a judge order the state, the public defense commission and Kampfe to provide lawyers or to “dismiss any cases in which an attorney cannot be timely provided.”

The lawsuit notes that Black defendants have been disproportionately harmed and are subjected to higher rates of pretrial detention and prosecution than the general public.

“We filed this case because the state continues to fail to provide public defenders for the huge number of people it charges with crimes,” Benjamin Haile, senior attorney at the Oregon Justice Resource Center said in a statement to OPB. “Prosecuting people is not the answer. The problems we’re seeing now are the end result of a failure to invest in communities.”

The Oregon Department of Justice didn’t respond to a request for comment; the agency rarely comments on pending litigation. A lawyer with the Office of Public Defense Services said the agency had not yet received the complaint.

This latest lawsuit also seeks class-action status so it can include “all indigent persons, including the named plaintiffs, who have been or will be charged with a crime by the State of Oregon, arraigned in criminal court, and left without legal representation for an unreasonable amount of time during the pendency of this litigation.”

In May, a nearly identical lawsuit was filed against the state and Gov. Kate Brown, as well as Stephen Singer, who at the time was the executive director of the Office of Public Defense Services. Singer was fired in August after just eight months on the job.

That earlier lawsuit was dismissed last month by Multnomah County Circuit Court Judge Shelley D. Russell. She ruled that despite the state falling short of its Sixth Amendment obligations, people without attorneys should argue the harm over their lack of counsel in their individual criminal cases, rather than through a class-action lawsuit.

“I do recognize that indigent persons have a right to appointed counsel and that that right is not presently being met in an immediate fashion in our state courts,” Russell said during a Sept. 2 hearing. “However, I do agree with the defendants that the plaintiffs in this case do not have standing to seek the type of relief that is sought.”

This latest lawsuit comes during a busy time for the state’s troubled public defense system.

Last week, the public defense commission hired Kampfe, who hasn’t officially started her position at the Office of Public Defense Services. Also, Singer filed a $2.4 million lawsuit arguing his dismissal was unlawful. Then, on Tuesday, Oregon Supreme Court Chief Justice Martha Walters announced she would be retiring at the end of the year. Walters appointed the public defense commission and had urged members to fire Singer in August.

Copyright 2022 Oregon Public Broadcasting. To see more, visit Oregon Public Broadcasting.

Conrad Wilson is a reporter and producer covering criminal justice and legal affairs for OPB.