Sampling Of Survey Results And Comments

NOTE: The surveys submitted to judges and prosecutors contained two questions (#1 and #5) concerning the quality of representation in indigent defense criminal cases which were essentially the same. Because the tabulation of responses to each of the two questions, however, were not exactly the same, the responses only to Question #5 are presented below.

I. Responses From Judges

OSB Task Force surveys were mailed to all one-hundred fifty (150) Circuit and District Court judges. Sixty-seven (67) surveys were returned. Twenty-six (26) different counties were represented in the sample.

It appears a sufficient diversity of geographic responses were obtained so that all forms of indigent defense delivery systems utilized in Oregon were identified by one or more judges as the 'primary form' of indigent defense delivery system in their jurisdiction. Of the four groups surveyed, judges provided the most written comments.

Results With Respect To Quality Of Representation

The judge respondents rated the quality of legal representation in all criminal defense cases (retained and indigent defense) as:

Excellent 12      Good 54      Fair 6      Poor 0

The quality of representation in indigent defense criminal cases was rated as:

Excellent 17      Good 47      Fair 10      Poor 1

The quality of representation in retained criminal cases was rated as:

Excellent 21      Good 47      Fair 3      Poor 0

Sample Comments - Judges

We are asking a few attorneys to take on the bulk of indigent defense at minimal compensation; some attorneys can adequately handle the caseloads, some have problems keeping up with caseload.

Too many cases for too few people. Not enough funding to cover increases in crime severity or sanctions that prevent plea bargaining.

Lack of client control; unwillingness to initiate plea discussions (defense counsel wait for DA to make offer); unwillingness of some to follow discovery rules; not understanding evidentiary rules; making frivolous sentencing arguments or release arguments.

Cases get tried that should have pled.

Too much plea bargaining with superficial understanding of facts.

The public defender's office is excellent, but new attorneys on the list add energy and aren't stale. There needs to be a balance between experience and energy versus experience and passivity. * * * The level of experience in the public defender's office and the willingness to mentor new lawyers is terrific.

No effective means of excluding the few incompetents.

Too much for lawyers to do spreads them far too thinly and mistakes, sometimes serious, happen. The lawyers need less clients/cases so as to perform adequately within time lines. They are handling more and more work/clients/cases with less and less resources. Inadequate client contact pre-trial affects seriously (and negatively) the perception of fairness by the client. Generally, the retained lawyer has more time/resources to apply to the representation and often can be 'more motivated' to attend to details important to the client.

Cases get tried that should have pled. Counsel is sometimes too slow - over tries case. Counsel is harried with too big a caseload - results in anger and unprofessional conduct.

Lack of adequate preparation and time spent with client. This is especially true on probation violation matters. Newer attorneys sometimes lack adequate training in the fundamentals of trial practice and evidence. Overall, they all seem overworked.

At times, many times retained attorneys wander into the criminal world and don't do half the job court-appointed attorneys do.

Some retained attorneys are excellent - few if any appointed lawyers are. This is to be expected, is realistic and appropriate. Appointed clients should expect reasonable representation. Monied clients should expect excellent representation.

Court-appointed defense attorneys seem more motivated by moving a lot of cases (being paid per case and not per hour) than by providing quality representation. I think the flat fee-per case approach is a bad way to deliver indigent defense services. It places the attorney in a conflict of interest with the client/defendant: the attorney, in order to promote his economic well-being, must move the cases quickly. The more time he spends on a particular case, the less money he makes, in effect. The only way to balance these concerns with the State's concern in keeping control over indigent defense budgets is to have a system of public defender offices where the attorneys are salaried.

My only concern is adequate funding - this year there were more cases than had been contracted to handle.

Good smart lawyers who try hard. They carry a heavy load and burnout can be a problem. They are ethical and truly care for their clients.

Defense bar does not put up enough of a fight - there is an absence, in most cases, of a truly vigorous representation. You get what you pay for. Preparation, vigor and overall competence is greater in retained cases, with occasional exceptions.

Lack of information about sentencing options suitable for defendants.

There is generally a good professional working relationship between the defense bar and the prosecution. Without this, we would be in serious trouble. The other point that comes to mind is that both the public defender's office and the district attorney's office are staffed with competent, experienced people.

Two chief areas of concern: (1) costs for experts and investigators, etc.;
(2) lawyers taking too many cases on a small dollar margin in order to get contracts ....

Increasing caseload with limited defense panel. Measure 11 cases will require more attorney and court time. Death penalty cases are consuming the qualified defense attorneys. I believe for the dollars spent the indigent defendant is often better represented than the retained client at a much higher fee.

The public defenders are honest, ethical, and attempt to do a good job. They lack overall experience due to their youth. I actually believe in many cases [defendants] do better with the public defender. That is why we lobbied [the State Court Administrator] to switch our county from a consortium of private attorneys to a public defender.

Insufficient time explaining process to clients.

II. Responses From Defense Attorneys

OSB Task Force surveys were distributed to members of the Oregon Criminal Defense Lawyers' Association (OCDLA) via a general member mailing. Forty-two (42) completed surveys were returned. About two-thirds of the returned surveys were from attorneys who identified themselves as private practitioners as opposed to public defenders.

Thirteen (13) counties were represented in the returned surveys. Of the five largest counties by general population, no surveys were returned from Marion County. Significant geographical diversity was obtained and the answers appear to reflect general trends versus unique differences based on the geography or population of the area.

Results With Respect To Quality Of Representation

The criminal defense lawyer respondents rated the quality of legal representation in all criminal defense cases (retained and indigent defense) as:

Excellent 7      Good 26      Fair 8      Poor 2

The quality of representation in indigent defense criminal cases was rated as:

Excellent 6      Good 24      Fair 10      Poor 5

The quality of representation in retained criminal cases was rated as:

Excellent 12      Good 28      Fair 3      Poor 0

Sample Comments - Defense Attorneys

Money crunch may encourage less than thorough work. Except in a few cases, quality is better in appointed [versus retained] cases.

Two chief areas of concern. (1) Sentencing: many attorneys (most) do not anticipate sentencing issues so are not prepared for sentencing issues. Sentencing is a very important area of advocacy, yet many attorneys merely pass through it with no apparent thought for advocacy or even oversight. (2) Search & Seizure: attorneys not up on the ever-changing law.

Pretrial conferences are not set up for real negotiation; some caseloads too high.

The eagerness of the contract firms to plead clients out ASAP and to have little contact with clients is often at shameful levels.

Chief strong point: strong communication between defense attorneys - good working relationships with one another. Chief area of concern: ballot measure 11 is taking up a disproportionate amount of our time/energy and adding stress.

Chief strong point: most defenders know each other and are willing to consult with one another (generally informally). Many dedicated defenders. Chief area of concern: caseloads are becoming bigger and bigger and have long since passed 'too big' so that public defenders cannot spend the time that the private bar can working up a case.

Most (not all) contracts go to the cheapest lawyers who are really bad and never intend to prepare a defense!

The federal defender, Metro, and many retained lawyers set a high standard that others cannot ignore. Overall things are strong, but there are a few lawyers who are extremely weak in all areas. The SCA should do a better job in identifying lawyers who are not qualified. This is not to say that some artificial qualification standards or mandatory training is the answer. Real benchmarks/standards could work like timely client contact, review of motion practice, trial/plea ratios, number of hours prepping for trial.

Too many cases leads to burnout and apathy which means too many pleas to bad offers. Chief areas of concern: Overemphasis on prosecution/law enforcement, while under staffing courts, under compensating indigent defense.

In response to the question '[i]s there a difference between the quality of representation for retained and court-appointed clients?' I treat them equally, but I constantly have to justify to the court administrator why I spent a lot of time on a case. This is especially true for my mentally ill clients - which seem to be 70% of court-appointed clients lately.

Chief areas of concern: We have not managed to expose the public to ideas that will spread responsibility for why our justice system operates and fails to operate in the manner it does. Our citizenry is quick to believe the 'problems' are all caused by defendants abusing the Bill of Rights versus police overstepping authority, district attorneys failing to spend time upfront to accurately evaluate [cases], public willing to believe there's no difference between an arrested methamphetamine manufacturer and an arrested person coerced into acting as a go-between in a bar sale of a paperfold of meth. Public glosses over issue of responsibility.

Chief strong points: The consortium spreads the representation of indigent clients out amongst a fairly broad base of practitioners while still allowing us to act as a cohesive unit when necessary; i.e., sharing motions, understanding system wide problems, etc.

Chief areas of concern: The limited funds available for investigation hampers the defense of many misdemeanor cases. Also the low unit pay rate discourages trial by some attorneys and also causes a lack of post-trial/plea follow up that is often necessary.

III. Responses From Prosecutors

Surveys were mailed to each of the three-hundred thirty-six (336) state prosecutors registered with the Oregon District Attorneys' Association. Ninety-nine (99) surveys were returned.

Results With Respect To Quality Of Representation

The prosecutor respondents rated the quality of legal representation in all criminal defense cases (retained and indigent defense) as:

Excellent 10      Good 72       Fair 15       Poor 0

The quality of representation in indigent defense criminal cases was rated as:

Excellent 12      Good 69       Fair 17       Poor 0

The quality of representation in retained criminal cases was rated as:

Excellent 14      Good 71       Fair 12       Poor 0

Sample Comments - Prosecutors

Please identify your chief areas of concern about the quality of criminal defense or criminal defense practices in your jurisdiction? (Question #6 and #10)

One of the lawyers who works for the public defender isn't very good. The rest are excellent. The public defender's budget is inadequate to provide excellent representation, but then our budget is inadequate too.

Many lawyers appear to be more concerned with making money than representing the interests of their clients. By avoiding equitable solutions for their clients, the attorneys are getting more severe sanctions imposed on their clients.

I have none regarding the quality as it is excellent. Ethics; communication with defendants; communication with prosecutors; discovery violations; procrastination.

Criminal defense, especially indigent defense, pays too little to attract quality attorneys. Plus they carry too many clients to do an effective job.

Too many people, not enough time.

My chief area of concern is in juvenile court - whether dependency or delinquency. Also some very marginally competent attorneys are sometimes appointed.

Public defenders are generally good. My worst experiences have been with solo practitioners on the conflict list. There appears to be no prerequisites, such as competency, to being placed on the list.

We have a high failure to appear rate. This causes many problems in the timely resolution of cases and sometimes double appointments. Most of this is not the fault of the defense attorneys, but rather our lack of jail space.

Private bar is gradually losing expertise as most work is handled by [public defenders]. I think this is unhealthy.

Unfortunately, there is not a mechanism in place in the system to get rid of the few bad lawyers that are in the consortium.

Most of the defense bar is very willing to negotiate a reasonable settlement. I worked in another county for eight (8) years with a public defender's office that I would characterize as system fighters. They would convince clients to take their case to trial, if they could not get the deal they wanted, just to clog the docket and the DA's workload. Their client most often ended up much worse off than under the proposed negotiated offer. In effect, they were selling out the best interest of their client to fight the system.

Borderline unethical tactics in hiding reciprocal discovery. For some it is a disease.

Unnecessary use of indigent defense funds for 'investigative work' and psychological evaluations. Some concern for training of young lawyers in questionable tactics.

Many attorneys haven't met with their clients prior to the day of plea or [probation violation hearing]. Good client contact appears to be lacking in many cases.

Many persons involved are too busy to ever learn their craft. Also zealotry gets in the way of effectiveness. The contract firms are just sending cases down a conveyer belt - no one has any time.

A few defense counsel have good client contact - some keep in good client contact with their clients - the majority do not.

Defense attorneys put everything off until the last minute. Frequently seek setovers because they are not prepared. In general, clog the system with cases that should be resolved.

There has been so much turnover in the [public defender's] office that the experienced attorneys are overburdened.

Volume of caseloads adversely affect some defenders in their performance. It appears that some very inexperienced defenders are given serious cases too early in their careers. * * * Our system relies heavily on young, inexperienced lawyers, many of whom do a very good job. They should be supported by the system that puts them to work.

The main problem in our jurisdiction is that many criminal defendants receive appointed attorneys when they are not qualified or marginally qualified and are not required to reimburse the costs.

Postconviction relief issues.

Please identify the chief strong points of criminal defense in your jurisdiction:

They know how system works, know what's realistic and generally do a good job at trial with cases that deserve a trial. They don't waste a large amount of time and resources.

Good group of lawyers. Honest, easy to work with. Can trust them.

Except for one provider, we have a good relationship with defenders and have confidence in their ethics and abilities. Good communications.

Some very zealous and very knowledgeable attorneys - mostly reasonable.

They are ethical and straight forward with a couple of exceptions.

Abundant funding for legal assistants and investigators.

Our defenders are the most experienced both in volume and variety.

Is there a difference between the quality of representation for retained and court-appointed clients?

Without question, despite denials if asked directly, I have observed a general tendency to move quicker and more effectively in retained cases and to allow indigent defendants to receive a less interested service. Example, a lawyer would never allow a [retained client] to have a warrant issued if he failed to appear. The lawyer would request a reset to investigate and to aid his client -to get him there. In indigent cases, these same lawyers would make no effort to save the client from a warrant. The attitude is much less service-oriented. If he fails to show, that's his fault is the attitude. The experienced [public defenders] are excellent as are the private practitioners who do a lot of criminal work. The problems are the turnover in the [public defender's office] and the attorneys who dabble at criminal work.

I have had attorneys who do minimal work on court-appointed cases and the same attorney with same issues do much more extensive work when retained.

Appointed attorneys are familiar with procedures and do a good job explaining this to their clients. Many retained attorneys are not familiar with criminal procedure and in the long run do a disservice to their client.

IV. Responses From Probationers

In November 1995 through March 1996, probationers being processed into community corrections offices for Clackamas, Jackson, Curry, Multnomah, Marion and Polk counties were asked to complete a written two-page survey. One-hundred ten (110) probationers responded, seventy-four (74) of whom indicated they were first offenders. Only eighteen (18) probationers reported that they had been incarcerated awaiting resolution of their case.

The manner in which the two-page survey was presented to probationers by intake personnel for completion is unknown. However, after collecting completed surveys, it was discovered that fifteen (15) of the respondents failed to complete the second page of the survey.

Results With Respect To Quality Of Representation

The probationers who completed the survey appear to be relatively satisfied with the manner in which they were represented by their attorneys. However, the survey results reveal that a significant number of the probationers believe their attorneys performed poorly with respect to spending adequate time with them, investigating all defenses and willingness to fight the prosecution.

Probationers were asked to rate their attorneys' performance in a number of areas.

The following areas of performance received the highest number of 'excellent' ratings by the probationers:

Pleasant to deal with
Willingness to plea bargain
Dealt honestly with you
Fully explained the defense process
Explained matters to your satisfaction
Knowledge of applicable law
Listened to your ideas/concerns
Worked hard for you/was prepared
Response to your phone calls/letters
  38
36
34
33
32
31
31
30
30

The following areas of attorney performance received the highest number of 'poor' ratings:

Willingness to fight the prosecution
Spent adequate time with you
Investigated all defense
Kept you informed
Response to your phone calls/letters
Worked hard for you/was prepared
Could be trusted
Discussed risks and options
  31
30
24
22
21
18
17
17

Sample Comments - Probationers

I was pleased with my attorney as follows:

Because they did their jobs, what they were supposed to do. Helped in getting charges dropped. He's hard to get ahold of on the phone - otherwise he was great.

[Name of attorney] did an excellent job. She explained things to me and left it up to me as to what I wanted her to do. I felt really comfortable with her as well as the other staff.

He was very nice and worked to get me what he thought was fair. He was sure I understood everything before I signed anything.

Very polite. Around when I called. Appeared for me every time. Believed in me at the beginning. Backed away toward the end, hurt me and my case.

She was professional at making sure I understood everything that was happening. I was happy that she didn't patronize me or talk down to me.

Prompt, informative, did not beat around the bush.

He was friendly and honest. I just don't think I was enough help. I was young and scared.

He did the best he could do. He made the best of a bad thing.

I was displeased with my attorney as follows:

I had to get him to call DA for plea bargain. I never had a one-on-one appointment with him to discuss my case. He never phoned me once. I had to call him repeatedly. In two months, I talked to him two times. Once on September 20 at first hearing for approximately 15 minutes. Then once on October 17 or 18th for approximately 15 minutes. Then I showed up at his office on day of court and sat there till he could see me. I knew absolutely nothing about anything except that I was going to jail.

He didn't discuss my case with me ahead of time. He did what he had to do and nothing else. Was shuffled to four different attorneys in four different offices. Only met with 'my' attorney for approximately 10 minutes. Never really discussed options.

Was a bit late for court. Just made me more nervous. Had to fill out and listen to my plea papers. Explained inside the courtroom during court.

I felt my attorney was not familiar enough with the system, she did not fight for me, and everything she told me was wrong. I feel I would have done much better on my own and would never trust a court-appointed attorney again.

He never showed up for two court days, had to delay, never informed me that he had moved his office.

Left doubts as to who he was working for.

I feel they are too eager to plea bargain instead of fighting for truth and justice. My first offense was a joke. I pled guilty because I didn't quite understand my options and recourse. Felt plea bargain was too easily entered.

He didn't explain the plea bargain. Told me one thing and another happened.

His bill was too much for the time he put in to my case.

He was a dump truck.