Our Task Force has chosen to address the adequacy of post conviction representation at greater length than other kinds of cases where inadequacies in representation were generally observed due to the concern of Task Force members that post conviction relief itself is supposed to - but does not - provide a viable forum for monitoring the adequacy of the representation provided in individual cases.
Post conviction petitions are handled almost exclusively in the relatively few judicial districts where state prisons are located. Small firm contractors in the relatively remote areas where prisons are located handle a disproportionate amount of the post conviction work, although the Marion County consortium represents most post conviction petitioners in Salem-area prisons. As a result, relatively few judges and practitioners in the state have firsthand experience with this post conviction work. There is limited understanding of and appreciation for the role of post convictions in most areas of the state. In areas where the cases are heard rarely, if at all, the general assumption reported in our survey is that post conviction procedures provide adequate safeguards and effectively monitor the quality of representation. However, those with more familiarity with post conviction representation have a very different view. Geographically, in rural areas where prisons are seated, local judges and the state Indigent Defense Services Division report chronic difficulty finding competent attorneys willing to accept the cases for the funds allocated. Funding is considered grossly inadequate to meet the challenges the cases present. In another judicial district, the unwillingness of consortium members to handle post conviction cases has forced the consortium administrator to offer post conviction attorneys an hourly fee significantly higher than for other non-capital indigent defense work: Marion County attorneys earn more for post-conviction, habeas and Measure 11 cases than other case types. Overall, it appears that competent experienced attorneys are not interested in handling post conviction cases as presently compensated.
The Task Force interviewed Steven Wax, the Federal Defender for the District of Oregon. His office represents persons convicted in the state courts who bring federal petitions for habeas corpus relief, the final level of review for most state court convictions. His perspective of the quality of representation provided to indigent clients across the state is a uniquely broad one. Mr. Wax has come to the conclusion that neither state post conviction nor federal habeas review adequately monitors state indigent defense representation. One factor he points to as particularly troubling is that state post conviction cases are underfunded even more than trial level representation: unlike trial level representation, where cases are often negotiated by way of plea or other compromise resolution, virtually every post conviction case goes to trial. The Indigent Defense Services Division bids case loads, for all case types, with the assumption that a certain percentage of the cases assigned will be resolved by way of guilty pleas or dismissals but, unlike most case types, this assumption is not valid in the context of post conviction cases. There is no procedural mechanism in the area post conviction relief for negotiated resolutions. Virtually all post conviction cases go to trial. Every post conviction case, therefore, requires thorough investigation, preparation, and litigation. The Federal Defender's Office has found, however, that few post conviction cases in state court are investigated. That office has investigated cases five or ten years later, discovered new evidence and, in some cases, successfully obtained a new trial for the client. Effective advocacy in this area should occur at the state court level, as well, and greater funding to attract experienced attorneys and investigators is the key to success in this area.
Having less qualified attorneys review the work of other defense practitioners, without the benefit of meaningful investigative resources, is certain to fail as a safeguard against the unjust results that post conviction relief is supposed to provide. This problem is exacerbated by attorneys' reliance on the McClure standard, which allows post conviction practitioners to shift the burden to their clients to identify errors that occurred at trial. McClure v. Maass, 110 Or. App. 119, 821 P.2d 1105 (1991), rev. denied, 313 Or. 74 (1992). Under this standard, the attorney is only required to investigate and present the issues identified by the client. Yet, few indigent clients have the legal sophistication, technical knowledge or investigative resources to adequately identify the manner in which their trial level representation may not have been legally adequate. Often, critical issues, concerning the adequacy of representation and fundamental due process rights are not preserved, due to a client's lack of sophistication or awareness. Issues not raised in the state court proceedings are increasingly difficult to raise during later federal review. Constitutional violations not alleged by the state post conviction attorney often are deemed waived by federal courts. Where no one but the often unsophisticated and resourceless client is attempting to identify constitutional violations or serious factual errors, the assumption that an adequate safeguard to wrongful conviction exists is seriously flawed.
Observers note that the need for increased funding is perhaps most significant in the area of post conviction relief, so that the attorneys handling the cases can reduce their caseloads and concentrate on the work that needs to be done. Likewise, observers noted that investigative resources must be developed in this area, education for providers must be increased, and oversight mechanisms for post conviction contracts must be improved. Particularly in light of the tendency of federal courts to disallow review of issues that have not been raised in the state courts and the corollary fact there is no real forum for challenging inadequate post conviction representation, the Indigent Defense Services Division should provide greater assurance that state post conviction clients are receiving meaningful representation at both the trial and post conviction level.