Defendants who do not have a lawyer MUST be released from jail, US appeals court rules

A federal appeals court called out Oregon’s public defense system as a “Sixth Amendment nightmare” in a ruling related to defendants having a lawyer represent them.

Referring to the U.S. Constitution guarantee that those accused of crimes have the right to a lawyer, the 9th U.S. Circuit Court of Appeals upheld a ruling last week that anyone being held in jail for more than seven days who doesn’t have a defense attorney must be released.

Oregon was held responsible for ensuring the legal protections for criminal defendants, the appeals court noted in the 2-1 decision, OPB reported.

According to data from the Oregon Judicial Department, more than 3,200 defendants did not have a public defender as of Friday’s ruling though only 146 of that number of people were in custody.

“A draft report from March found that Oregon needs 500 additional attorneys to meet its obligations. State officials have taken steps to address the issue, including providing additional funding, but structural issues remain,” OPB reported. “Some changes are underway, including hiring the first trial-level public defenders who are also state employees. Also, next year, the Oregon Public Defense Commission will move from the judiciary to the executive branch under the governor. Lawmakers say they’re hoping the move will give the agency more support.”

The decision by the 9th Circuit Court upholds a preliminary injunction issued last year by U.S. District Court Judge Michael McShane in a case from Washington County. A class action habeas corpus petition was filed through the federal public defender’s office of Oregon as 10 people charged with crimes were being held in county jail while not having court-appointed attorneys.

During a hearing last year, the judge was clear that the failure of constitutional protections would be met with his ordering defendants to be released if they were not provided an attorney.

“It’s an embarrassment to the state,” McShane said at the time. “It’s a complete tragedy and nobody seems to have an answer. Literally, we suspended the Constitution when it comes to this group.”

Writing for the majority in last week’s ruling, Circuit Judge John Owens, who was appointed by former President Barack Obama, blasted the “Kafkaesque scene” as Oregon violated the 60-year-old U.S. Supreme Court ruling, Gideon v. Wainwright.

“You might think this passage comes from a 1970s State Department Report on some autocratic regime in the Soviet Bloc,” Owens wrote. “Unfortunately, we do not need to go back in time or across an ocean to witness this Kafkaesque scene. This is the State of Oregon in 2024.”

“Yet, due to an ‘ongoing public defense crisis’ of its own creation, Oregon does not provide indigent criminal defendants their fundamental right to counsel despite Gideon’s clear command,” Owens wrote, adding that instead of facilitating lawyers for defendants, “Oregon insisted on fighting the solution.”

Trump-appointed Circuit Judge Patrick Bumatay called out the ruling in a dissent as “reckless and extreme” and said, “The Ninth Circuit is now complicit in a judicial jailbreak.”

“And those being released are not sitting there for some petty offense,” Bumatay wrote. “Just look at the charges of the named Petitioners here—they are accused of rape, kidnapping, strangulation, assaulting a police officer, public indecency, and burglary. All will now be released into Oregon’s communities.”

“The dissent’s unbounded approach is an ode to classic judicial overreach,” Owens shot back. “It remains unclear why the dissent blames the district court for a ‘judicial jailbreak.’ Consistent with the Sixth Amendment, Oregon could solve this problem overnight simply by paying appointed counsel a better wage. It is Oregon, and not the district court, that created this crisis.”

A spokesperson for the Oregon Department of Justice told OPB they’re reviewing the decision.

Oregon’s federal public defender, Fidel Cassino-DuCloux, praised the ruling.

“The Ninth Circuit’s opinion in Betschart breathes life into the Sixth Amendment right to counsel, which has been an empty promise for too many presumptively innocent Oregonians charged with crimes,” he wrote in a statement, according to OPB. “We hope that the state authorities heed the Ninth Circuit’s instruction that no one remains in jail without counsel and implements the decision without delay.”

Frieda Powers


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