But there’s a difference here.
Moskowitz is part of a new breed of defender in Oregon county courthouses: one who works directly for the government, not as a private attorney under contract.
The shift, approved by state lawmakers last year, is the latest bid to provide public defenders to the thousands of Oregonians who have been charged with a crime and can’t afford a lawyer of their own — yet still lack legal representation.
As of Friday, roughly 2,500 unrepresented defendants remained out of custody — an increase of about 500 defendants from a year ago. Another 120 people sat in jail without a lawyer.
A federal judge has ruled that thestate’s failure to provide attorneys to criminal defendants violates the U.S. Constitution and has ordered jails to start releasing the people stuck behind bars within seven days if they remain without an attorney.
The statewide order byU.S. District Judge Michael McShane — in response to a lawsuit filed a year ago in Washington County — doesn’t apply to murder suspects or people who violate their release conditions and end up back in custody. A three-judge panel of the 9th U.S. Circuit Court of Appeals in May upheld McShane’s order, though the state could seek a further review by the full 9th Circuit bench.
In the meantime, the Oregon Public Defense Commission’s new trial division is starting small, with Moskowitz and four other senior public defenders serving the Portland metro, three in Medford and three in Salem. Another eight attorneys will come on board later this summer.
Moskowitz was on hand earlier this month at the Washington County Circuit Courthouse to represent a Hillsboro man accused of robbing another man. With a few words and a judge’s signature, Moskowitz pushed the case out 60 days.
Such set-overs are routine; they give public defenders time to investigate the charges against their client, formulate a defense or strike a deal with the prosecutor.
“Public defense is important because it’s the shield that individuals get from the power of the state,” Moskowitz said. “Justice isn’t going to be done unless you have somebody who has legal training looking at your case, holding the state to its standards and giving you advice.”
State lawmakers have pumped some $200 million into the public defense system since the crisis surged into public view about two years ago, but it hasn’t been enough to provide a lawyer to every unrepresented defendant.
The Oregon Public Defense Commission, a 13-member panel appointed by the governor to oversee the indigent defense system, says the state needs an additional 480 public defenders to reinforce the current 500 full-time equivalent positions deployed across the state.
A six-year-plan released by the commission would also double the state’s two-year public defense budget from $598 million to $1.3 billion by fiscal 2029-2030. The plan doesn’t specify whether the increase in defenders should come from contract or state employees.
Critics say the long-range plan is too costly and pin the blame for the unrepresented defendants on caseload caps that the state public defense agency implemented in 2021.
Proponents, however, say the caseload caps are ethically necessary — as lawyers are bound to provide adequate representation and not take on too many clients — and say the new trial division will provide better pay equity between prosecutors and defenders,as well as allow for robust data collection and help prevent conflicts of interest.
Backers have long argued that thestate needs to invest in a robust defense for people who are often on the margins of society and disproportionately represented in the criminal justice system. They face state-funded prosecutors, who typically make tens of thousands of dollars more (plus a pension) than their public defender counterparts.
The new state trial division will help boost recruitment, though nonprofits and contractors will remain a linchpin in the public defense hybrid workforce, said Carl Macpherson, executive director of Metropolitan Public Defender, a nonprofit with the largest state contract. The firm provides indigent public defense in Multnomah and Washington counties.
“I think nonprofits are the best model to provide the most effective representation, but you’re going to need other components as well,” he said. “Some people want the stability of a state job to do the work.”
'Zealous defense' needed
Oregon’s patchwork public defense system has long been an outlier nationwide.
Just four other states employed the contractor-only model used by Oregon for decades, according to a November 2023 report by the National Institute of Justice, the research arm of the U.S. Department of Justice.
In practice, that model meant a mix of solo practitioners, small groups of attorneys known as consortia and nonprofit law firms provided indigent defense in Circuit Court — all then billing the state through contracts.
Now lawmakers have stitched on a new division, one they hope will employ 30 percent of public defenders by 2035 — potentially hundreds. Legislators have approved just $10 million for the new division so far, meaning the goal remains largely aspirational.
The money is primarily going to salaries, including for 19 defenders expected to be hired in this first round, as well as an administrator and 22 support staff, such as paralegals and investigators, plus rent for each regional office. The trial division is expected to continue as an ongoing expense — with increases to hire more state-funded defenders toward the goal — if the Legislature buys in.
The trial division is just one part of the Oregon Public Defense Commission, which governs the state office that administers the contracts, the newly formed trial division and an appellate division.
The addition of state employees to contractors marks a sea change for how the state delivers public defense, even when it remains invisible to many facing the gavel.
“I think that my role here is the same as it’s always been, which is to provide a zealous defense to people who need it most,” said Amanda Scioscia, another senior deputy defender working for the division.
The creation of the trial division is the end product of a series of reforms to Oregon’s public defense system that began in 2018, when the Sixth Amendment Center released a review saying the system was dangerously underfunded and likely unconstitutional.
The report by the Boston-based nonprofit found that the convoluted Oregon defense billing system drove public defenders to take on more clients than they could handle — because the state had no limits on workload and compensated public defenders with a flat fee for each new case.
The report cited as an example one unnamed defender who took on more than 1,200 misdemeanor cases in a year.
In response, lawmakers shoveled tens of millions into the agency, which eventually implemented caseload caps in 2021. Under the new rules, misdemeanor caseloads are capped at 300, while full-time defenders can take on roughly 150 felonies or 45 Measure 11 cases.
Those changes did little to address other long-standing defender complaints, including lower pay than prosecutors, less money for support staff and high rates of turnover and burnout.
Crisis began in 2022
Unrepresented cases began cropping up in 2022,while a report from the American Bar Association estimated the state’s public defender ranks were deficient by two-thirds.
In the midst of theburgeoning turmoil, the public defense commission itself became embroiled in a disputebetween the then-director of the state’s public defense office andformer Chief Justice Martha Walters. Walters ended up replacing some commission members to ensure the director, Steve Singer, was fired.
Singer sued over his dismissal but settled the case for a $380,000 payout last year.
State lawmakers approved the latest round of reforms in 2023, injecting another $90 million into the public defense agency and approving the pilot program that established the new trial division.
Senate Bill 337 also allowed for a bit of rebranding, unifying both the public defense office and the oversight commissioners under one name — the Oregon Public Defense Commission — and gave Gov. Tina Kotek, not the chief justice, the power to appoint or fire commissioners.
Much of the $90 million went toward an 8.8 percent bump to contractor rates, as well as one-time incentives for defenders to stay on the job, continued funding for the agency’s case management computer system and keeping on some short-term agency staff on a permanent basis.
SB 337 provoked a docket’s worth of ire from the nonprofit consortia, or groups of private practice attorneys who take cases for a flat fee, as the law eliminates those groups by 2025.
Supporters of the new law say the consortium model lacked oversight and tempted attorneys who took both private and public defense cases to spend more time on their more lucrative private clients. They expect many consortium attorneys to continue providing public defense through a different reimbursement model based on billable hours, not flat fees, or join nonprofit public defender firms.
Jonathan Sarre, a full-time public defense attorney and administrator of the Portland Defense Consortium, strongly opposed SB 377 before it was passed by the Legislature, noting that consortia provide about 60 percent of all public defense in Oregon.
Sarre’s consortia is composed of three law firms and four solo practitioners, and while some may switch to the new timekeeping payment system, he expects others to be pushed into early retirement.
“It’s a lot more expensive to have state employees doing this work versus contractors,” he said. “I can’t say if they’re going to get the money or not, but if I were in the Legislature, I’d have some concerns.”
Ballooning budget
The Legislature already has plenty of concerns.
At a meeting of the Joint Interim Judiciary Committee last month, Rep. Jason Kropf, R- Bend, gestured to the rising cost of public defense — which has jumped from $367 million in 2019-21 to roughly $598 million in the current budget cycle — and said the injection hadn’t done much to stem the crisis.
“I don’t begrudge anybody who comes in here and asks for more money. That’s every single meeting of every day I have in this building,” Kropf said. “It’s a question of outcomes for those dollars.”
Kropf said he’s concerned that the commission’s estimates of its needed workforce won’t hold true, noting that more than 80 percent of public defenders don’t work their maximum caseload already. The meeting was held to provide an update on implementation of Senate Bill 337.
Other critics have noted that the Oregon Public Defense Commission’s ballooning budgetcomes at a time when the overall number of criminal cases filed has been decreasing by about 1.4 percent a year, a trend that the defense agency predicts will last well into the future.
There is no universally accepted reason for the long-term decline in crime, though social and economic factors including urban redevelopment, the rise of a professionalized police force and the greater use of surveillance technologies are likely at play, experts say.
At the Joint legislative meeting, Public Defense Commission Chair Jennifer Nash said the lack of defenders was “unacceptable” but that boosting caseload caps, as the Oregon District Attorneys Association has called for, was no solution at all, because attorneys would be working more cases than they can manage.
“I don’t think the measure should be, ‘Because you’ve gotten more money in the last few years, you shouldn’t get more,’” Nash said. “This agency has been woefully underfunded for decades.”
The new trial division is part of a solution to bridge the gap, Nash said, and is already handling 171 open cases, with another 81 cases closed out since the division opened in January.
For comparison, there were about 22,000 total felony and 36,000 misdemeanor cases filed in Oregon in 2022. Public defenders were assigned in about 90 percent of overall cases.
Aaron Jeffers, the trial division’s chief, said his attorneys are prioritizing the cases of defendants who typically must remain in jail while facing charges, as well as those involving defendants with mental illness.
While the trial division offers higher salaries than some indigent defense nonprofits, Jeffers said the division is trying to avoid poaching public defenders who are already employed by the system. Many of the division’s new defenders are from out of state or are coming back after a break from the profession, thereby adding capacity to the overall system, he said.
Scioscia, for instance, is a former longtime defender in New York who recently moved to Oregon for family reasons, while Moskowitz came back to public defense after a stint as state administrative hearings judge.
Salaries at the trial division range from $133,000 to $193,000 for senior public defenders, or $99,000 to $132,000 for deputy defenders, not including pension benefits.
While most public defenders practice in only one or two counties, Jeffers said the trial division will someday rapidly fill gaps whenever a lack of public defenders arises across the state.
“We’re nimble, we get to go where the need is,” he said.
But those plans remain a long way off. In the near term, the commission wants to ramp up hiring to expand the trial division, which would require millions more from lawmakers during the next legislative session.
'Don't have lawyer for you'
In the meantime, the daily grind of bringing criminal defendants to court for fruitless attorney appointment hearings will continue.
On a Tuesday earlier this month, Michelle Plancarte clasped her hands, as in prayer, as a jailer led her into the secure vestibule of a special courtroom built inside the Multnomah County downtown jail.
The 53-year-old was there to face accusations related to car theft, a charge she’s faced 10 times before in the past 15 years.
Harry Carson, an attorney with Metro Public Defenders, was there to shepherd every defendant through their first court appearance.
The proceeding, called an arraignment, is required under the constitutional right for defendants to speedily see a judge after their arrest. But in practice, the hearing is perfunctory and exists mostly for defendants to officially enter a not-guilty plea.
Carson, who helped every defendant get through the procedure, wasn’t there to take on any of the individual cases. Instead, the judge relies on lists of available attorneys provided by public defenders. The court staff know in advance when no attorney will be available.
Carson quickly explained the facts to Plancarte: “We don’t have a lawyer for you, we’ve run out of public defenders.”
Then Carson recited a dry litany he had repeated more than a half-dozen times during the hearing, asking Circuit Judge Rima Ghandour to dismiss the case based on the violation of Plancarte’s state and federal constitutional rights.
A prosecutor quickly noted the state’s standing objection to dismissing a case after only one attempt to appoint a lawyer.
Nina Clark, whose car was allegedly stolen, spoke up, saying she had her car back thanks only to police and a tracking app — but the medical records, debit cards and even ultrasounds of her now 13-month-old child were gone.
“I feel so violated,” Clark said. “It’s not OK for people like this to get chance after chance after chance.”
The judge replied that she had no choice but to release Plancarte on her own supervision. Clark shook her head.
Ghandour ordered Plancarte to return to court Aug. 20, when the state would try again to scrounge up an attorney.
Zane Sparling covers breaking news and courts for The Oregonian/OregonLive. Reach him at 503-319-7083, zsparling@oregonian.com or @pdxzane.
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