Ore. county's public defender shortage leads to criminal cases being dropped
Some of the cases encompassed face-to-face “person crimes,” where defendants were charged with beating, assaulting or threatening the safety of victims
By Aimee Green
MULTNOMAH COUNTY, Ore. — The list of Multnomah County criminal cases dismissed this year because no public defenders were available to represent the accused is eye-opening, leaving victims awaiting justice that may never come:
A visibly swollen and bruised 11-year-old girl who told Fairview police she didn’t want to go home because her mother kept beating her, including that night with a punch to the forehead.
A Southeast Portland Plaid Pantry clerk hit in the head by a man who made off with six packs of cigarettes.
A Portland area real estate agent who was struck by an alleged drunken driver, suffered seven broken bones and a collapsed lung and has been forced to retire before she was ready.
Customers at a Gresham gas station chased around by a woman, with a meth pipe and a knife, who they say tried to set cars and gas pumps on fire with a lighter.
A man who was enjoying a drink with friends at a Troutdale bar when investigators say another patron, who was drunk, accidentally shot him in the leg.
A TriMet bus driver pepper-sprayed in the face by a passenger.
The Oregonian/OregonLive combed through the list of 200-plus felony cases in Oregon’s most populous county dismissed by judges this year because there wasn’t a public defender to spare. While most involved defendants accused of stealing cars, fleeing police or illegally possessing guns, a small but significant swath encompassed face-to-face “person crimes,” where defendants were charged with beating, assaulting or threatening the safety of victims – sometimes even with knives or guns.
Chris Day, the TriMet bus driver doused with chemical spray 10 months ago after he says he declined to drop off a passenger half a block before her stop, said it’s “disheartening” to see his case and so many others dismissed. He suspects the passenger had mental health and anger management problems, that without a criminal conviction, have gone unchecked.
“The purpose of the court system is to get people the help they need,” he said, “and if they’re not getting the help, things are just going to get worse.”
The list of closed cases shines a new and bright light on a long-simmering problem in Oregon and across many parts of the nation: Too few public defenders, too many cases, uncompetitive pay from the state and a system that all sides agree isn’t fulfilling its constitutional obligation to provide adequate representation to defendants who can’t afford lawyers.
The crisis reached a tipping point early this year, with circuit court judges in Multnomah County for the first time dismissing some cases as the already strained system bowed under increasing shootings, homicides, burglaries, robberies, car thefts and vandalism.
The consequences are only now coming into full public view after Multnomah County District Attorney Mike Schmidt took the bold step two weeks ago of publicizing the complete list, pledging to update it each week until the situation is resolved. As of Friday, more than 220 defendants accused of felonies and 75 of misdemeanors have seen their cases dismissed since February because there weren’t enough public defenders.
Schmidt hopes the attention will foster public understanding that the crisis has not only been hurting criminal defendants who vie for limited time with overworked attorneys, but the general public, too.
Schmidt said he understands why judges have resorted to dismissing cases. But, he said, “it’s horrific. My attorneys are trying to explain this to a victim. It’s like, ‘Hey, sorry, your case was dismissed because the defendant didn’t have a lawyer.’ Where are the victim’s rights in that? …We are having to have a lot of awful conversations with people.”
He said he’ll refile charges and prosecute all of the cases if the shortage resolves, and already he has had success reactivating a small number. But the future is uncertain. And the clock is ticking, with the statute of limitations for most felonies standing at three years and for most misdemeanors at two.
The problem isn’t isolated to Multnomah County. Circuit courts in about 10 of the state’s 36 counties are experiencing public defender shortages. The number currently stands at more than 700 defendants in need of representation. But unlike in Multnomah, by and large those courts haven’t resorted to dismissing cases – yet. The effect, however, is similar: With no lawyer for the defense, some criminal prosecutions have screeched to a standstill.
Most notably, about 175 defendants in Washington County – the state’s second most populous county – have been charged and their cases remain open as they wait for an attorney.
“To me, it’s a complete breakdown of the system,” said Washington County District Attorney Kevin Barton. “The answer to this problem cannot be not prosecuting cases.”
Meanwhile, Clackamas County, the state’s third largest county, has been able to avert the crisis so far for a variety of reasons, including a steady number of public defenders willing to work there.
‘I’ll never be the same’
The dropped cases in Multnomah County have left many victims feeling disillusioned.
The Oregonian/OregonLive spoke to five, none of whom wanted to see the people who allegedly committed the crimes locked up simply in the name of justice.
But they worried unprosecuted crime will lead to more crime when the perpetrators learn they won’t be sent to jail or prison or ordered into treatment. Under the best of circumstances – when the system is working as it should – defendants who are found guilty but not sent to prison are often connected with drug, alcohol and mental health treatment and sometimes even housing.
Or in the case of intoxicated driving defendants, their licenses are suspended or revoked and they’re often ordered to listen to victims of impaired drivers talk about how the crashes devastated their lives.
Carol Scalf is disappointed to see the driver who struck her in fall 2021 go unprosecuted. On the day of the crash, Scalf, a real estate agent, had been dropping some flyers off at a home she’d listed for sale in North Portland and was driving back to her home in Gresham when prosecutors say an 18-year-old drunken driver struck her. It was shortly before 9 on a Sunday morning. He was charged in January with driving under the influence of intoxicants, reckless driving and assault for striking Scalf and another driver. He made his first court appearance in May but by August saw the case dismissed because the system couldn’t assign him a public defender.
Scalf woke up in the intensive care unit with a fractured spine, ankle, ribs and a collapsed lung and a head injury. She said it has been a grueling and slow recovery – 14 months filled with doctors, chiropractor and physical therapy visits.
“I’m still not recovered,” Scalf said. “I’ll never be the same again.”
Although she was 75 at the time she was hit, she wasn’t planning on retiring any time soon. But she said she’s had to give up her career because of the crash. She also hasn’t been able to drive, because it’s physically and psychologically too much.
The Oregonian/OregonLive isn’t naming the driver because a judge dismissed the case against him. Reached by phone, like other former defendants in this story, he declined comment.
Multnomah County judges say they don’t want to dismiss cases, but they’re constitutionally obligated to when no lawyer is available to represent the accused.
“It’s incredibly frustrating,” said Chief Criminal Judge Cheryl Albrecht. “The statute tells us we shall appoint counsel at the time of arraignment, not later.”
In another case, Day, the TriMet bus driver, said just like Scalf he hasn’t been able to work, either. Day said the incident unfolded on the No. 9 line as he waited at a stop light in Gresham, and just as the light was about to turn green, a passenger asked to be let off. Day said he told the passenger he’d open the doors at the next stop, just on the other side of the intersection, but the passenger tried to kick the doors open, got her foot stuck in between them, then took out her fury on Day with the pepper spray. TriMet excluded the passenger from riding the system for 90 days.
It’s the third time in 16 years of driving buses that Day said he’s been assaulted, and that doesn’t include a passenger who tried to smear blood on him. Day said he returned to work this spring, but felt uneasy. After spotting the accused passenger at one of the bus line’s stops, he knew he’d need to find another career. Day said his doctor and therapist signed off on putting him on disability.
“It’s unbearable,” Day said. “How can I describe it? You don’t know when the next attack is going to come. And you don’t feel protected.”
Carl Macpherson, executive director of Metropolitan Public Defenders, the state’s largest public defense firm, said the lack of attorneys for indigent clients is a public safety crisis that harms both defendants and victims. He said he understands why the Multnomah County District Attorney is spotlighting the issue by putting out the list.
“I think he’s being open and transparent about the problem,” Macpherson said.
Many players in the criminal justice system – prosecutors and public defenders alike – believe a driving force toward change would be pay parity. Metropolitan Public Defenders, for example, pays $64,000 to $95,000 a year while county prosecutors earn $98,000 to $196,000 annually.
But more money would need to come from the state Legislature, because public defenders are paid for from state coffers. And the state entity most equipped to push the issue — the Office of Public Defense Services and its oversight commission – have been in turmoil. In August, the commission ousted the office’s controversial executive director Stephen Singer.
Businesses suffer, too
Of the cases dismissed this year in Multnomah County because of the public defender shortage, about 14% involved assaults or other crimes committed directly against people. Most by far – 53% – involved property crimes such as car thefts, vandalism or burglarized businesses.
Jen Causey’s downtown Portland espresso bar, Lotus & Bean, falls into that category. Investigators say at about 4 a.m. this past July, a man who appeared amped up on drugs broke into a jewelry appraisal business on Southwest Third Avenue, then Causey’s coffee shop next door. Once inside, he emptied the contents of a fire extinguisher; tipped over a refrigerator, tables, chairs; threw a new $16,000 espresso maker onto the floor; shattered ceramic mugs and a glass door; and left blood from his cuts splattered across the floor. An arriving officer later wrote that virtually everything that could be broken was.
“Honestly, I was just kind of shocked that one person could do all that,” Causey told The Oregonian/OregonLive.
Causey said the man easily wreaked more than $50,000 in damage, which she said she’s thankful her insurance covered. But even so, the incident forced her to close for three weeks to clean up and wait for new equipment.
She doesn’t, however, hold any ill will against the man who did it, whom she said she looked up on Facebook and discovered is middle-aged, has three children and has been in and out of rehab. But she wonders what will get him to return to drug treatment now that his court case has been dismissed.
“He has a very significant addiction that needs to be addressed,” Causey said. “I want him to get some help.”
It’s been a particularly tough year for Portland’s business community, which reports an onslaught of vandalism, thefts and property crimes against them. Just last month, startling numbers released by prosecutors show Portland police referred just 2% of theft cases to the district attorney’s office for prosecution because of their struggles to track down and build cases against the vast majority of suspects.
Also last month, a co-founder of Salt & Straw ice cream shops said the company would move its Southeast Portland headquarters out of state if the city didn’t get a handle on crime. In response, Mayor Ted Wheeler held a summit this past week with business owners to talk solutions.
Many of the cases on Multnomah County’s dismissed cases list would have never seen the light of day in a courtroom if it weren’t for chance discoveries by police.
Case in point, a pair of thieves were caught on surveillance video breaking into Campfire Audio’s warehouse in inner Southeast Portland in March and making off with $240,000 of the high-end earphones the company manufactures.
With police resources strapped, employees searched online sites and found their products for sale. A friend of an employee spotted a man selling their product out of the trunk of his car at a flea market. But it wasn’t until a month later that a Portland cop struck up a conversation with a suspect, noticed a pair of fancy earphones on him and then discovered thousands of dollars of the stolen earpieces in his truck.
The man was charged with theft. But a few months later, a judge dismissed the case for lack of a public defender.
Campfire Audio’s vice president, Caleb Rosenau, said while the burglary was like a punch to the gut, his company has significantly beefed up security and is here to stay. He just hopes police, prosecutors and the courts work out solutions – finding some way to hold offenders accountable. That might start with stable housing, mental health treatment and drug treatment to stop the need to feed their addictions, he said.
“We’re very much not interested in moving,” Rosenau said, “because we care about the city and we want the city to get better.”