The View From Here

Daunting Times Require Dauntless Spirit

by Olcott Thompson, OCDLA President

Nov/Dec 2017 issue of The Oregon Defense Attorney

I don’t know about you but at times it feels like everything is falling apart and crashing down all around me. As I write this in early November, steps are being taken on a national level that will harm many of our clients. Most of us will escape the worst, and we do have the skills to mitigate problems. Our clients, however, many of them, will end up worse off than they presently are.

Our president continues to interfere with the court system. He wants the Justice Department to stop investigating people close to him and to investigate Hillary Clinton instead. He says the American criminal justice system is a joke and a laughingstock. He calls for the death penalty for varied transgressions. He so interferes with the military justice system that one of the objects of his scorn is not given a further prison sentence but is discharged from the Army. The president fails to see any connection between the result and his meddling. He still complains.

There certainly are problems with the American criminal justice system. But it is not a joke. Nor is it the laughingstock of the rest of the world. Much of the world tries to emulate our justice system. I doubt the president even knows what the problems really are, much less is willing to expend any energy to fix them.
On a state level, the recent Oregon Supreme Court case State v Sierra, 361 Or 723 (2017), used State v Partain, 349 Or 10, 239 P3d 232 (2010), to essentially eliminate any limit on a trial judge’s retaliation during a resentencing because he or she got reversed on appeal.

On a local level, the Marion County District Attorney’s office is in disarray. A number of experienced attorneys have left and it has a large number who are learning. The biggest impact on the defense is getting discovery and just getting cases resolved.

Then there is a fellow defense attorney who had one of my incarcerated clients taken to another county to testify at a trial without telling me. Don’t do that, folks. Someone in jail very likely has an attorney. Communicate with that attorney about having the client testify. I hope—but I am not sure—that my client said nothing to hurt the case I am representing him on.

Depressing. Daunting. Everywhere we turn the system seems to be crashing. No good answers, at least not to me. There is little we can do on the national stage. There is little we can do about who the DA hires except train them. But there are things we can do. Can we deal with Sierra? We can try to persuade the legislature to override Sierra so a sentence cannot be longer after a successful appeal.
Looming over all is the problem of public defense funding. Flat pay. Increasing case loads. Increasing case complexities. Lower pay now that drug possession cases are misdemeanors, although the case complexity is the same (or more) than when the same cases were felonies.

Clearly, asking for “pay parity” has not been the answer. The defense needs comparable resources with the prosecution, not pay parity. We need to change our message. We need to show why there is a benefit to funding both sides comparably. Both sides have different functions and different duties. While prosecutors have additional resources—they have law enforcement help—they must also review all cases sent by law enforcement to decide which ones to file. Defense lawyers don’t screen cases, but we do have to learn all we can about our client so we can appropriately resolve their case. Prosecutors rarely know much about the history of any of their witnesses, while we do.

Different duties but a need for comparable resources; all resources available to both sides must be considered. The legislature wants data, data, data. Data has, unfortunately, become the Holy Grail. We must gauge how to show our valuable worth. For example, how many months of prison time is saved by our advocacy? Do any of us know the answer as it relates to our own clients? I know I don’t.
We also need to enlist partners. For a number of reasons, some of which we ourselves created, the state bar is no longer actively supporting public defense. We need to get them back on board.

Many community organizations will support us if we support them. The people supporting the hospital and insurance premium tax need our support (the Ballot Measure 101 folks). We need the tax to stay in place or the legislature will be looking for money (probably from public defense) to fill a budget deficit in health in February. Public defense, even though its funding was flat, came out of the last legislative session in better shape than many other programs. The Judicial Department’s budget was cut. Other agencies’ budgets were cut. Yes, the prosecution function overall got more money. None of this means public defense will escape cuts if the legislature must fill a new budget hole.

OCDLA is committed to the process of getting more money and resources for public defense. The PDSC will, I hope, learn what prospective contractors say the cost will be to provide the requested services before it creates its budget request to the legislature. This budget number should be comparable to the prosecution’s resources.

I also hope PDSC will continue its overall look at public defense in Oregon to determine the best way to provide quality representation at a fair cost. PDSC should consider how attorneys providing representation to criminal defendants and to individuals in the juvenile courts should be compensated. Forget what the current system is. What would be the best system if it could be created from scratch and without any consideration of cost?

Answers from me, no, but it is great doing what we are doing—working in an imperfect system with imperfect people as clients, and making sure the state follows its own laws while protecting and helping our clients as much as possible. Helping make a “laughingstock” system a little better every day.

On a lighter note, be sure and come to the holiday dinner and Ken Morrow Award tribute to Barnes Ellis at The Benson Hotel Friday evening, December 1. We should all celebrate the accomplishments of Barnes who helped pioneer and shape the public defense system in Oregon into what it is today. (Read more about him on page 13 of the Nov/Dec 2017 Oregon Defense Attorney.) By participating in the auction and the wonderful Wall of Wine, you will also be raising funds to help with OCDLA’s legislative advocacy—whose resources are up to us.