Indigent Defense

Federal judge orders release of county's unrepresented defendants, says problem is 'complete tragedy'

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A judge in Oregon has said in remarks from the bench a situation regarding defendants being held without lawyers for 10 days in Oregon is “an embarrassment” to the state. Image from Shutterstock.

A federal judge in Eugene, Oregon, has ruled that defendants held without lawyers for 10 days in Washington County, Oregon’s jail must be released from custody.

U.S. District Judge Michael McShane of the District of Oregon said in remarks from the bench Tuesday the situation in Oregon is “an embarrassment” to the state, report Oregon Public Broadcasting and the Oregonian. He issued a written ruling Thursday.

As of Aug. 15, there were 32 indigent defendants held in Washington County, Oregon’s jail without access to a lawyer, McShane said in his Aug. 17 opinion and order. Statewide, more than 160 people are being held without a lawyer while in jail, according to the news media coverage.

“It’s a complete tragedy, and nobody seems to have an answer,” McShane said. “Literally, we have suspended the Constitution when it comes to this group.”

In his written decision, McShane said the detained defendants without lawyers “have been locked away without a voice, being too poor to afford an advocate to speak for them in the courtroom.”

McShane will order the release of currently incarcerated Washington County defendants within 10 days of his order if they still do not have counsel at that time. In the future, county defendants will have to be released from custody if they don’t have counsel within 10 days of their initial court appearance.

McShane is an appointee of former President Barack Obama. He ruled in a petition for habeas corpus filed on behalf 10 defendants and others who are similarly situated.

One defendant, Joshua Shane Bartlett, was held in the Washington County Detention Center for 48 days and represented himself in five hearings without a lawyer. He was released after pleading guilty to one count of assault in the fourth degree, apparently without a lawyer, McShane said.

Another defendant, Walter Betschart, was held without an attorney for 102 days and made eight court appearances without representation. A lawyer has finally been appointed.

The habeas petition, filed by Oregon’s federal public defender’s office, alleged violations of the Sixth Amendment and 14th Amendment. McShane said the argument has merit.

“There is simply no dispute that Washington County’s failure to appoint counsel, while incarcerating pretrial detainees indefinitely, violates the Sixth Amendment’s right to counsel and fundamentally impacts the liberty interest a pretrial detainee has under the due process clause of the 14th Amendment,” McShane wrote.

According to the Oregonian, the Oregon legislature has approved emergency funding for indigent defense, but the system is plagued by high turnover and burnout, fueled by low pay and high caseloads.

Tung Yin, a professor at the Lewis & Clark Law School, told the Oregonian that he expected the federal public defender’s office to pursue similar arguments in other Oregon counties.

“All good lawyers would have to be looking at this and thinking this is a shot across the bow,” Yin said.

The case is Betschart v. Garrett.

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