At a recent meeting of the Public Defense Services Commission in Newport, Tim Gassner and two colleagues pleaded with the body to restore funding to their legal group, the Madras Indigent Defense Consortium.

Formed in 1987, the consortium was until recently one of two groups providing public defenders to courts in Oregon’s 22nd Judicial District, which includes Jefferson and Crook counties.

But the five-member consortium was undone last month by allegations of wrongdoing by the general counsel of the office overseeing public defense contracts in Oregon, the Office of Public Defense Services.

Gassner’s long-shot efforts ultimately proved ineffective. On Thursday, the state Public Defense Services Commission approved a new slate of contracts for 2020 with no money allotted to the Madras consortium.

The consortium will now wind down as its remaining cases conclude. Gassner and his colleagues still dispute the allegations, which include accusations that MIDC attorneys took cases beyond their allotted quotas and bullied courthouse staff.

The dispute in Madras is part of a larger effort to upgrade Oregon’s public defense system, and a first step in what’s expected to be a yearslong process that could include new legislation.

The catalyst for the recent push to overhaul the state public defense system was a January study by the Sixth Amendment Center finding that Oregon’s public defender system was so unfair to defendants it was unconstitutional. The study concludes the root of the problem is Oregon’s fixed-fee contract system, which pits appointed lawyers’ financial self-interest against their clients’ due process rights.

The study warns of the “perverse incentives” of the flat-fee system. In Oregon, public defenders are essentially paid the same amount to arrange a plea deal for a client as they are to take a case to trial.

In the last legislative session, the Public Defense Services Commission supported a bill that would have altered how public defense is contracted, but House Bill 3145 died in committee.

In the meantime, the commission has directed staff to move from a flat-fee system to a system combining full-time equivalent positions with hourly billing. It’s thought that if lawyers are paid based on caseloads, they won’t feel the same pressure to close cases. And in the alternative, if lawyers are paid hourly fees, there would be no incentive to plead out, and no disincentive, either.

One of the first matters to address is figuring out what caseloads are going to look like under the new system. Once the Office of Public Defense Services knows how many cases attorneys can handle, it can determine how many full-time equivalent attorneys are needed around the state. To do this, Oregon will likely look to its neighbor to the north. Public defenders in Washington are limited to 400 misdemeanor cases per year and 150 felony cases per year.

The Public Defense Services Commission must also develop quality assurance and oversight standards to ensure public defenders hit obligations to their clients. In other states, these metrics include meeting with clients within 48 hours of taking a case and filing motions on their clients’ behalf.

If the Office of Public Defense Services can convince legislators to buy into its plan, $20 million set aside in the last budget reconciliation bill would become available for the office to distribute around the state beginning in February.

There are important distinctions that must be addressed in the upgrade, according to Shaun McCrea, executive director of the Oregon Criminal Defense Lawyers Association. One issue is balancing the needs of rural versus urban communities. Another is the matter of juvenile delinquency and dependency matters, which can last far longer than adult criminal cases and involve more lawyers.

“That’s why it can’t be a one-size-fits-all approach,” McCrea said.

The Madras Indigent Defense Consortium memo by Office of Public Defense Services general counsel Eric Deitrick notes that with the MIDC out of the picture, its members could now join the district’s other defense consortium, the 22nd Circuit Defenders. It could be a fruitful move for those lawyers. The latest contract cycle includes far more funding for the 22nd Circuit Defenders than in the past.

The windfall will likely mean the 22nd Circuit Defenders adds more lawyers. It will almost certainly mean every 22nd Circuit Defender can now hire a legal assistant, according to lawyer Jennifer Kimble, the group’s administrator.

“It will be great for our clients,” Kimble said.

A number of lawyers who practiced in 22nd district courtrooms say they were shocked at the allegations against the MIDC and that they never personally witnessed anything like the behavior described in Deitrick’s memo.

Among the MIDC’s defenders are retired Judge Daniel Ahern and Jefferson County District Attorney Steve LeRiche.

Ahern wrote a letter of support to the Public Defense Services Commission noting the importance of having attorneys for indigent clients live in the same communities as the clients they represent.

“I stand by my letter,” Ahern told The Bulletin. “Those problems could have been addressed in another manner. It would have been nice if they had brought them up with me.”

LeRiche said Deitrick’s memo “didn’t feel accurate from my perspective.”

“I’ve had relationships with these attorneys going back for years, and I don’t like to see them slighted,” LeRiche said. “They’re good attorneys, and they put in their time in the community.”

On Wednesday, Office of Public Defense Services officials will address the Legislature’s joint Judiciary Committee and update members on the move to the new payment system.

— Reporter: 541-383-0325, gandrews@bendbulletin.com