In a preliminary order read from the bench Tuesday following a two-hour hearing in Eugene, McShane said the ruling applies to the 36 people currently in the county鈥檚 jail without counsel and 鈥渁ny future defendants who are similarly situated.鈥�
While the ruling will be directed at Washington County, the public defense crisis is statewide. As of Tuesday, more than 160 people facing charges in 17 of Oregon鈥檚 counties were in custody and did not have a court appointed defense attorney.
鈥淚t鈥檚 a systematic statewide problem,鈥� McShane said Tuesday. 鈥淚t needs to be addressed quickly, because we can鈥檛 simply hold people in custody without representation for indefinite periods of time.鈥�
The Sixth Amendment guarantees a right to an attorney. The courts have interpreted that right to mean people charged with a crime must be provided with an attorney that鈥檚 paid for by the state if defendants cannot afford one. For nearly two years, Oregon has failed to provide lawyers for everyone charged with a crime.
鈥淚t鈥檚 an embarrassment to the state,鈥� McShane said. 鈥淚t鈥檚 a complete tragedy and nobody seems to have an answer. Literally we suspended the Constitution when it comes to this group, and that simply is not the appropriate response.鈥�
The case was filed by Oregon鈥檚 Federal Public Defender鈥檚 Office last month. During remarks in court Tuesday, Fidel Cassino-DuCloux, the federal public defender, ticked through a slew of constitutional violations playing out daily.
鈥淭hese constitutional violations are occurring right now, your Honor,鈥� DuCloux said. 鈥淭hey鈥檙e not occurring in some bunker or some clandestine place like Guantanamo Bay, they鈥檙e happening in plain view and many people are just turning a blind eye or pointing the finger at somebody else.鈥�
Attorneys for Washington County argued the sheriff cannot address many of the issues raised by the federal defenders, such as providing attorneys to those in custody.
鈥淵ou have to admit, the one thing the Washington County Sheriff can do is release people under a habeas order,鈥� McShane replied.
鈥淵es, your Honor,鈥� Washington County鈥檚 Eamon McMahon said. 鈥淭heir release is conditioned on the provision of counsel, which is beyond the power of the Washington County Sheriff.鈥�
McShane said he planned to file his written order Thursday, when it would take effect.
鈥淎ny order I issue is not meant to be a disparagement of either the judges in Washington County or the DA鈥檚,鈥� McShane said. 鈥淭hey both have to bear this problem but aren鈥檛 really the root cause.鈥�
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