OSB Indigent Defense Task Force III Report

IIntroduction Summary Types of Providers Staffing Training Geographic Analysis Post Conviction Proceedings Conclusions, Goals and Recommendations

Types of Cases

Throughout the state, concern for the quality of representation in certain kinds of cases is voiced. Juvenile court representation is widely viewed as an area in which representation is often inadequate. Parents in dependency actions who face possible termination of their parental rights are viewed as routinely receiving some of the poorest representation. Juveniles in delinquency actions, the rough equivalent of adult criminal charges, follow close behind. However, ironically, convicted defendants who bring post conviction petitions to challenge the adequacy of their trial level representation are viewed as the 'adult system' clients who receive the most problematic representation: although most respondents are generally unfamiliar with post conviction practice, those with experience in the area are very direct in voicing their concerns. All three types of representation post conviction, juvenile dependency/termination and juvenile delinquency are viewed as areas in which clients' interests are often served poorly by their appointed lawyers. Unlike other case types, where instances of inadequate representation are considered to be unacceptably high but certainly not the norm, clients with legal matters of these types are viewed as facing an unreasonable likelihood of receiving poor representation.

Concern is voiced about the quality of representation provided in other types of cases, as well, although the observations were somewhat less pointed and less uniform: misdemeanors and sex offenses are reported to be other areas of consistent concern statewide, as well as minor felonies and drug cases in some areas. Observers noted that the attorneys providing services are often the least experienced and appear not to receive enough training or support to cope with their ever enlarging caseloads. With respect to misdemeanors, minor felonies and drug cases, many districts have adopted practices to streamline dockets and encourage speedy resolutions; while these efficiencies have many benefits, they serve to encourage minimal effort and interaction with the client for some indigent defense providers. Some offices providing such services are viewed as little more than 'plea factories', staffed with lawyers who may not recognize or act on differences between clients and cases. Inadequately trained, inexperienced attorneys struggling to cope with caseloads that continue to grow in size are the reported causes of inadequate representation, universally linked to the system's failure to adequately fund defense services. In many instances, those surveyed observed that more experienced attorneys are unwilling to handle fast track, high volume dockets that do not allow or encourage good trial practice.

Sex offenses present their own set of problems. The cases are always challenging, presenting difficult pre-trial and trial issues. Unlike most other case types, the factual backgrounds are often extremely complicated, involving numerous interactions and connections between prospective witnesses. Competent investigation often requires not only interviewing witnesses over many hours but also obtaining records relating to various medical, school and family issues. Counsel can expect vigorous resistance from many sources, not the least of which can be the prosecutor's office. The work load associated with developing a case to the point that a competent decision can be made about whether or not to take a case to trial is far greater than that associated with any other case type, save homicides. However, unlike homicides, sex offenses have a particular stigma to which many practitioners, themselves, react. Combined with the funding inadequacies present throughout the system, and the prospect of Measure 11 sentences that can amount to true life sentences, the cases present a challenge that even many experienced practitioners find overwhelming. As a result, experienced practitioners in many judicial districts refuse or avoid appointments to sex cases. The people charged with these most serious of offenses, by default, have appointed counsel who may lack both the experience and the time to handle the cases adequately. Again, participants in our survey report that the only solution is to provide significantly greater resources to encourage experienced attorneys to take on the challenge of these cases.

Post conviction cases can be equated to sex offenses in this regard: they are perceived as being among the most difficult cases, factually, legally and emotionally. Litigious prisoners will be a part of a post conviction caseload, and those clients are not prized by most practitioners. Representing post conviction petitioners also necessitates criticizing the work of other members of the Bar, an often unenviable obligation. Problems with post conviction representation are detailed at greater length below. However, like sex offenses, competent representation by experienced attorneys is at its most important in the area of post conviction relief: only an experienced, diligent attorney is likely to assess a post conviction claim adequately and federal legislation has increased the likelihood that overlooked issues will be fatal to future efforts to obtain relief. Respondents indicate that only increased compensation will make these cases attractive enough to experienced practitioners to draw competent representation.

In less populated areas of the state, judges repeatedly note difficulty in obtaining qualified representation for more serious or specialized kinds of cases; local legal economies are often too small to support such specialists and the few attorneys with sufficient experience may be unwilling to accept indigent rates of pay. Along with sex offense and post conviction cases, parental terminations were raised by a very high proportion of respondents as a particular concern. Ballot Measure 11 charges, generally, have presented a problem in certain judicial districts, as attorneys tire of handling cases with significantly increased sentencing consequences but no commensurate increase in compensation. The Indigent Defense Services Division and, in districts where judges retain control over the appointment process, the courts seek to appoint the most skilled attorneys to the most serious cases; in the smaller districts, limited options can force appointment of less-qualified lawyers.

In the more populous judicial districts, however, the dynamic is different: the more serious the offense, the more likely the person charged will receive experienced and skilled legal representation. In the larger districts, the concerns voiced were about the 'fast track' dockets and newer attorneys handling caseloads that were too large for their abilities. Particular concerns, however, should not obscure the fact that even more experienced and competent attorneys are feeling the effects of increasingly difficult caseloads. Experienced practitioners and other observers report that cases are more complex than five or ten years ago, requiring greater investigation and preparation, due to enhanced procedural laws and sentencing provisions. The increase in mandatory sentences makes clients more resistant to negotiated resolutions, causing difficulty in client relations and complicating the work involved. As a result, even more experienced attorneys are struggling to manage burgeoning caseloads of complex cases.

Submitted May 22, 2000, Oregon State Bar Indigent Defense Task Force III-A:

Seana McMann Ash, Bend Charles Kochlacs, Medford
Scott Asphaug, Portland Michael Phillips, Eugene
Elizabeth Baldwin, Astoria
John Ranson, Portland
David Blan, Pendleton Diana Stuart, Portland
John Connors, Portland Kristen Winemiller, Chair, Portland
Nelson Hall, Portland
The Honorable Edward J. Jones, Portland David Orf, BOG Liason, Meford

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