The View From Here

Where Do We Go From Here?

by Olcott Thompson, OCDLA President

Apr/May 2018 issue of The Oregon Defense Attorney

The Board held a symposium just before the DUII seminar in March to learn what people think OCDLA should do in response to ongoing public defense funding issues. Before a report about that, a couple of detours.

Another Successful CLE
First, the DUII seminar was another in a great line of OCDLA seminars. Though aimed at the defense of DUIIs, lots of useful information was provided for defending any case—voir dire tips, accident reconstruction information, investigation and scientific evidence, among other topics. Even if you are no longer competent to handle a DUII case (like me), it was well worth the time to gather tips for the cases you do handle; and if you want to return to or start doing DUII defense, this was a good primer on what and how to do it. Continuing kudos to the OCDLA Education Committee—they do a great job organizing OCDLA seminars.

The Importance of a Third
Second, why should OCDLA care about funding for public defense? The majority of members are not public defense providers. However, public defender and consortia members provide OCDLA with lots of resources: they (we) not only pay dues, attend seminars, and purchase books and other materials, public defender and consortia members also speak at seminars, do superb appellate work, help with our legislative tasks, and provide ideas on how to better represent our clients. Check who the trial attorney was on some of our great appellate wins and often that attorney will be a public defense provider. These myriad resources help OCDLA provide all the varied and important services we’ve all come to appreciate.
OCDLA was started by public defender offices. We need them — and the rest of the public defense providers, the consortia — in order to continue to bring a strong voice to the legislature and to continue building the great services the organization offers including seminars, publications and Books Online, the Library of Defense and criminal appellate reviews, listserves like the Pond and gatherings for socializing and networking. This is why the crisis in public defense funding matters to OCDLA and should matter to all of us, beyond just the basic philosophy that everyone deserves a good lawyer when trying to fight the state. Think how OCDLA would be diminished if one third of its services disappeared.

A Symposium on Public Defense and OCDLA
Back to the symposium. Former Chief Justice Paul DeMuniz was the moderator. He spoke about his experiences as a new lawyer doing public defense work (receiving $50 if the case settled, $100 if he went to trial) and then as a chief justice of the Oregon Supreme Court helping set the state budget for public defense. His big takeaway was that OCDLA’s message is important. How we present what we want and how we tell the legislature why it is needed is vitally important.

Many people spoke at the symposium and, thankfully, very few griped about the current (and ongoing) lack of money. If you haven’t heard, the short legislative session produced funds for OPDS to have the Sixth Amendment Center study the current system of providing public defense services and the ABA conduct a caseload study. The Sixth Amendment Center study is planned for this summer. If you are contacted as part of the study, please respond. What we convey will influence what their report says about how well the system of providing appointed lawyers is working. We, and the legislators, need to know this. The Board’s focus is toward the future and OCDLA’s role regarding funding. Our lobbyist, Mary Sofia, is focused on substantive law, (as have our lobbyists for years). Past OCDLA fiscal lobbyists have not seemed to make much difference, and unless OCDLA cuts services or staff we do not have funds in the budget for a second lobbyist. My read of the consensus from the symposium is that is not the direction OCDLA should take.

What, then, should OCDLA do? We should continue to poke, prod, encourage, cajole, and help the Public Defense Services Commission look at how public defense is funded. Reevaluate what is the best way to provide (and pay for) public defense in Oregon. Forget “fixing” the current 30-plus–year model. Take a fresh look and design a system that works for Oregon and then implement it. What is a fair income for public defense attorneys? How should PD offices be compensated? How should independent providers be compensated? How do we compare defense compensation with prosecution compensation?

What is vitally important is that we not splinter into warring groups. For years PD office heads have spoken with each other about ideas for operating their offices. That is one genesis of OCDLA: PD office directors using ideas from other offices to improve their own. They have now turned that into a more formal arrangement. Ten years ago, the heads of public defense consortia had similar discussions, at the prompting of OPDS. Consortia administrators have now started their own formal organization to seek additional funding—the Oregon Defense Consortia Association.

A few years ago PD offices and consortia were at loggerheads because the legislature — to everyone’s surprise — gave PD offices more money but no additional funds to consortia. That discrepancy was largely remedied two years later but some of the bitter rivalry remains. We cannot afford to be at loggerheads with each other. We need to present a united front at the legislature. The current 30-plus–year system does not work, if it ever really did. It does not provide sufficient compensation and it causes caseloads that are too high, ensuring less effective representation and attorney burnout. Because the pay is too low and the workload too high, too many lawyers are leaving public defense.

If we fight amongst ourselves, the message of what we want and why it is needed becomes diluted. Everyone needs a better system, including our clients. Right now we are fighting for crumbs. Together, we can get loaves of bread. Ultimately, divisiveness is a threat to the OCDLA we have all supported for over 35 years, an exemplar organization that has become one of the bright lights and leaders of defense associations nationwide.

The Board will discuss what role OCDLA should take at the Board retreat in July. Meanwhile, as was said before the American Revolution (or “the Colonial War” to the British), “United we stand, divided we fall.” We must remain united, or all the work that each of us and OCDLA has done to create a strong association, a network of stalwart criminal, dependency and delinquency defense attorneys, and a solid presence in the legislature — all of which make our efforts on behalf of our clients more effective — will have been for naught. OCDLA and the defense community would return to the days of sideline observer, powerless to protect civil rights, reduced to watching bad legislation pass and struggling for the monetary crumbs the legislature gives public defense. Don’t let it happen.

If you have ideas, thoughts, comments on what role you think OCDLA should have, please let a Board member know. I can be reached at o.thompson@comcast.net.