Defense system
(Continued from Page 1)
neys were compensated by the
county to represent indigents In
dividual judges ruled who qual
ified as indigent.
But in March 1973, the Lane
County Board of Commissioners
authorized a feasibility study into
the creation of a public defender's
office. The study, which was car
ried out by an ad hoc committee of
mended the mixed system which
the county has adopted. The pub
lic defender will handle about 50
per cent of indigent defense, the
remaining half still will go to pri
vate attorneys.
The new program is funded to
handle 725 felony cases. 330
non-traffic misdemeanors, 500
juvenile cases and one-half of the
‘In big urban areas,
courts are like warehouses
with defendants coming in
one door and lawyers another
and guilty pleas everywhere’
the Citizen's Advisory Committee
for Criminal Justice Planning, did
not reach consensus. Thus, the
county commissioners made no
changes.
Then in February 1976, Lane
County requested technical assis
tance in designing an indigent de
fense system from three members
of the National Legal Aid and De
fender Association It recom
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In that study, committee mem
bers reasoned that a public
defender s office would provide
better counsel to the poor and be
cheaper to the county because in
digent counsel would be
specialized in one office
It also gave less than high
marks for the court-appointed de
fense system. Suspicion exists
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that indigents sometimes receive
less than adequate counsel when
represented by court-appointed
attorneys
The reason: court-appointed
attorneys receive less pay from
the county than the going rate in
pnvate practice
A public defender, in theory,
explains Linda Mills-Erickson. a
member of the board of trustees
for the public defender's services,
provides for experienced counsel
from attorneys who are being paid
a satisfactory salary
"Right now I don't think there s
any doubt that indigents get less
adequate representation than
paying clients, says Mills
Erickson, who notes that she is
speaking for herself What I want
is for defendants to get the best
shot at justice as possible Hope
fully. the public defender program
will do that
The cost of the new program for
the fiscal year 1977-78 is esti
mated at $318,000 Its staff, which
will include eight attorneys, includ
ing the public defender, four inves
tigators and four secretaries is
headed by Bob Larson, who will
be earnina a S23 500 salarv
But the public defender prog
ram has run into opposition from
the start including foes in the dis
trict attorney s office Also, the
Lane County Bar Association
twice narrowly defeated proposed
endorsements of the program
F. William Honsowetz. a
Eugene attorney, challenges its
supposed advantages
I don t see any reason to set up
another huge government
bureacracy,' says Honsowetz
And I'll tell you, I fight bureauc
racy all the time, it's frustrating
Honsowetz claims the public
defender s office cannot replace
the rapport between individual at
torneys and clients The worry is
that the public defender s office
may become institutionalized and
be more concerned with develop
ing a working relationship with the
district attorney s office than in
representing clients
Honsowetz also disputes the
claim that the new system will
save the county $53,000 in the
upcoming fiscal year He says it
will mushroom into a more costly
proposition in the coming years
Honsowetz also maintains that
new attorneys and those fresh
from law school will be further
handicapped in building a practice
and gaining experience if court
appointments are replaced by the
public defender.
And, adds Honsowetz, the
heavy caseload to be handled by
the public defender's office will
force it to engage in a good deal of
plea bargaining with the district
attorney's office
Currently, Lane County District
Attorney's office brings 20 per
cent of felony cases to trial, which
is higher than the national aver
age
Mills-Erickson fairly bristles at
some of these charges. The ratio
between funding and caseload for
the new public defender was not
an arbitrary figure, she says, but
based on a nationally-recognized
formula from public defender s of
fices elsewhere. And, in fact, is
calculated to better the national
average of hours expended per
client, she says And she isn't
sympathetic to the charge that the
court-appointed system should be
retained so that new attorneys can
cut their teeth on court appoint
ments.
"There's nothing worse than
depriving people of liberty, it's the
most frightening thing possible to
see innocent people in jail or the
guilty not nave a cnancu iu unau
questions that should be raised,
she says To me. it's reprehensi
ble to think that young attorneys
would use indigents as guinoa
pigs to gam experience so they
can go into more lucrative areas in
the field ot law
It seems everyone admits the
court-appointed system has its
faults Judges complain that inot
ficient lawyers waste the court s
time Furthermore, since court
appointed attorneys receive less
pay than the going rate, charges
have been made that court
appointed attorneys either pad
lie funds,' smiles William Frye,
chairer ol the board ot trustees tor
the public defender s ottico It's no
secret that the public detender
services may go alter federal do!
lars which have previously gone to
law enforcement agencies In fact
tho throe-member feasibility study
done for the county urged such
action
Also, at the present time, tho
defense bar is loosely organized,
says Frye It's roally a mob of
organized lawyers on individual
cases Tho public defendor office
will give it a cohesive voice
Exactly how poor
must the poor be?
Counsel should be provided to any person who is
financially unable to attain adequate representation without
substantial hardship in providing necessities to himsell or his
family
Oregon statute 135 050 establishes that everyone, re
qardless of financial situation, has a right to his day in court
To determine eligibility tor public counsel, a defendant
must fill out an afladavit detailing finances Questions include
the following Did you have a job at the time of arrest7 How
much wages do you have coming altogether? Do you have a
car? How much cash do you have? Do you have any bank
accounts? Do you own or are you buying your home or any
other real estate? List any personal property you own
"The problem with the form explains District Courl
Judge Maurice Merten, is that it fails to reflect liabilities
Someone might have $1 OOOin the bank but SlO.OOOm medi
cal bills All we could do is look at the affadavit and soy yea or
'nay'"
In other words, it has been pretty much up to the judge to
decide who qualifies as indigent even though Morton says
that Oregon statute directs judges to give defendants the
benefit of the doubt
Problem was, |udges did not have time to thoroughly
investigate a person s finances With few fixed criteria, judges
had to make spot decisions
That should all be changed with the advent of the public
defender system Instead of judges appointing counsel to
indigents, that task will fall under the court administrator s
jurisdiction Although no system of eligibility criteria has been
devised yet. it wi II have to do more than just ask a person his or
her assets, says Linda Mills Erickson, who is working with the
court administrator to come up with suitable criteria
'This is not an easy thmq to do, says Mtlls-Enckson You
can use median standard of living stalistics but it's not easy to
derive a formula Eor instance, should a spouse s income and
assets be included in determining a defendant s resources?
What happens if fhe defendant has one major asset a TV for
instance Should he be forced to sell it when in fact it's his
family's TV?
Any new formula will have to lake into consideration what
it would cost the defendant to hire a private attorney, says
Mills-Erickson. that is, it makes a world of difference if charged
with murder or shoplifting And it's possible that a person may
have a handsome job but if a lawyer demands a $500 retainer
will the client have that kind of cash readily available
Whatever system is devised. Mills-Erickson lists lour
necessary criteria — income, assets, liabilities and cost of
private defense
Then, too, a nagging question concerns the lower middle
class If the indigent defense system can do an adequate |ob of
providing the poor with counsel, what about the marginally
ineligible? '
A lot of people out there are working and don't want to <
on welfare, says Merten "That's the American ethic I fe
hesitant to punish those people
But Merton adds that most crimes have an oconorr
motivation, that it is the poor who find themselves in coi
looking to the county to pay for their "day in court
their hours in juvenile court where
they are paid hourly,or extend
cases to get more trial time Even
Honsowetz admits that this is
probably done, but he'd rather see
the pay rates increased rather
than go to the new system
And perhaps the most vocifer
ous critic of the new system has
Oeen Dist Atty. Pat Horton In
previous public statements, he
has said that a public defender will
not necessarily upgrade indigent
counsel and that it would be more
expensive in the long run
Others speculate Horton may
nave different motivations,
"Well, there's going to be a new
Which means that the creation
of a public defender will add some
consistency in plea bargaining
and, according to Frye, "If the D A
is subject to criticism it will be
easier to express dissatisfaction
with a public defender there "
Horton has been unavailable for
comment, at least he has not re
turned messages left at his office
all of last week
During this year data will be col
lected to compare the public de
fender system and the court
appointed system, Mills-Erickson
says, which should give everyone
an idea on who best defends the
poor