Federal judge orders release of defendants after 10 days if they don’t have an attorney

By Kevin Opsahl, Rogue Valley Times

Jackson County District Attorney Beth Heckert is worried that a federal judge’s order to release defendants from jail in Washington County within 10 days if they don’t have an attorney appointed by then could have staggering repercussions for the Rogue Valley, including the release of people charged with murder.

U.S. District Court Judge Michael McShane last week ordered Washington County Sheriff Patrick Garrett to start releasing defendants who don’t have attorneys from his jail within 10 days. 

In an interview Tuesday, Heckert said she was concerned about what kinds of defendants might get released.

“I’m hopeful that we don’t have really serious crime people released — but there’s nothing in McShane’s order that keeps it from applying to someone who is charged with murder. If you don’t find a murderer a lawyer within 10 days, they’ll get released.”

McShane’s order came in response to a class-action lawsuit filed in U.S. District Court by the state’s federal public defender, Fidel Cassino-DuCloux, who asked the court to provide “unconditional release from custody” or “sufficient money for class members to hire private attorneys.” 

McShane’s ruling gave Garrett 10 days to release from jail any defendant named in the lawsuit if they did not have an attorney by that time. The judge also said any future defendant who does not have an attorney by the time of their first court appearance also must be released. McShane also stipulated that defendants are subject to conditions upon their release to ensure they show up for future court dates, and if they don’t abide by the terms of their release, they could wind up in jail again.

Cassino-DuCloux’s petition and McShane’s order both acknowledge the state’s public defender shortage crisis, which has left hundreds of defendants, both in jail and released, without an attorney. Unlike prosecutors, those attorneys are not state employees subject to a contract from the Office of Public Defense Services. The current contract was extended until the fall, when a new, two-year contract will go into effect.

In Heckert’s mind, McShane’s order just “brought attention” to the public defender shortage crisis, but it did not fix it. 

“It’s a broken system that we are not going to find a solution, tonight or tomorrow, to fix this system,” she said. “It’s going to take years to build back up.”

Heckert said she was not surprised the Washington County defendants filed a lawsuit against their sheriff, because that county, along with Jackson County, has some of the highest numbers of defendants in or out of custody without attorneys.

McShane was quoted from the bench as saying it’s “an embarrassment” that Oregon continues to hold defendants in jail even when they don’t have attorneys.

The comment did not faze Heckert.

“Maybe that brings more attention to it, more eyes on the system to try to make it improved,” Heckert said. “But I knew it was a problem. I didn’t need Judge McShane to tell me this was a big problem for us, so it didn’t change how I looked at the issue.”

In response to McShane’s order, the Oregon District Attorneys Association wrote a letter to Oregon Gov. Tina Kotek and the Legislature offering some new “concepts” to make the federal order unnecessary. The concepts include raising the caseload limit for public defenders, raising the threshold for what qualifies for indigent defense services and hiring more public defenders.

The association’s letter claimed that Jackson County “will apply the recent federal ruling in their jail,” but a Jackson County Circuit Court employee stated in an email Tuesday that “the court has not made a final decision regarding this issue at this time.”

In Jackson County, Heckert said she is “still not positive” court leaders and members of the legal community are addressing the public defender shortage issue adequately.

“For all the meetings and the talking and dealing and the efforts that’s been going on here locally, we have no new providers in Jackson County today that I’m aware of,” Heckert said. “And we’re still drowning in the work. … it is frustrating.”

Reporter Kevin Opsahl can be reached at 458-488-2034 or [email protected]. This story first appeared in the Rogue Valley Times.