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Oregon Supreme Court considers authority of judges in public defense dispute

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The Oregon Supreme Court heard arguments Tuesday on whether judges can force public defenders to take new clients — even when those lawyers say they’re too overwhelmed to provide the kind of defense required by the constitution.

For nearly two years, the state has failed to provide defense attorneys for thousands of people who cannot afford a lawyer it has charged with crimes. That violates the U.S. and Oregon constitutions.

The case before the court arises out of Marion County, where earlier this year judges forced Tim Downin, a lawyer at the Public Defender of Marion County, to take a new client. The nonprofit public defense firm in Salem where Downin works argued that taking on more clients than their attorneys can ethically handle violates a defendant’s constitutional rights to effective counsel, as well as Downin’s ethical duties. Despite objecting, judges in Marion County appointed Downin anyway, which is how the dispute got before the Oregon Supreme Court.

“What we desperately need is a clear rule from this court that this is improper,” Kristin Asai, the attorney for the Public Defender of Marion County, argued Tuesday before the Supreme Court.

Senior Justice Lynn Nakamoto asked: “What’s the downside of accepting the state’s proposal? … Basically that trial courts have broad discretion on whether to appoint someone who objects based on ethical grounds.”

Asai responded the danger is what’s happening with public defenders being forced to take cases in Marion County.

“They are not providing sufficient representation to clients,” Asai said. “They’re knowingly being forced to violate their ethical duties to other clients, and they’re leaving this profession. They’re leaving this office, which is further burdening the other attorneys there to take on and absorb their caseloads.”

Attorneys for the state argued judges are required to appoint a lawyer, even if that attorney says they can’t ethically do the job well.

“This court on several occasions has said that courts have inherent authority to call upon officers of the court attorneys to represent indigent defendants in criminal cases,” Deputy Solicitor General Paul Smith argued to the justices.

Justice Bronson James, a former public defender, said making a request was not the same as forcing an attorney to take a case.

“What’s the authority for the latter?” James asked.

“I don’t have a satisfactory answer for that,” Smith replied.

During a brief rebuttal, Asai seized on Smith’s argument.

“The state has just admitted it has no authority to allow a trial court to force appoint an attorney under these circumstances,” she stated.

The court took the petition under advisement but did not indicate when the justices might issue their ruling.

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