Deschutes County judge speaks out on ‘very concerning’ public defender shortage; seven defendants released so far

(Update: adding video, comments from Judge Ashby; 5 of 6 on earlier pending list now have attorneys)

'It's very concerning that we're in this situation,' Presiding Judge Wells Ashby says

BEND, Ore. (KTVZ) -- Last week, NewsChannel 21 reported on Deschutes County District Attorney Steve Gunnels' alarm over the growing public defender shortage and how that is impacting courts and posing a 'severe public safety' risk.

Since then, Gunnels has provided NewsChannel 21 a list of 13 criminal defendants who have been released or could have potentially been released in coming days as a result of no appointed defense attorneys; five of those now have attorneys appointed. Some of those who have been released or were awaiting release pose a safety risk to children.

Criminal defendants are regularly released (with the judge imposing conditions to follow) pending further court proceedings for a wide variety of reasons - they are not considered a flight risk and can post 10% security (bail), they can be monitored through use of GPS (ankle) devices for "house arrest" in certain crimes, etc.

But this public defender crisis is bringing a new reason to the overburdened system: the inability to in timely fashion provide a defendant the legal representation they are constitutionally required to have, if they cannot afford to hire an attorney on their own.

"It's very concerning that we are in this situation," Deschutes County Presiding Judge Wells Ashby told us Tuesday in a phone interview. "Defendants do have the right to have counsel, if they've requested counsel and qualify. We cannot proceed until those individuals have a lawyer. So hopefully this situation gets addressed at the policy level, so we can move forward with these important cases." 

According to the DA's office, as of Saturday, seven criminal defendants had been released because of the shortage of public defenders. They stand accused of crimes including sexual abuse, rape and attempting to flee a police officer. Four of the seven released due to lack of an appointed attorney have charges relating to children.

Urias Perez was released Saturday. His pending charges include luring a minor, rape and sexual abuse. Cody O'Neal is another defendant who was released from jail in late April because he didn't have a state-appointed attorney. He's charged with 10 counts of child sexual abuse.

Judge Ashby said, "It's OPDC's (the Oregon Public Defense Commission's) responsibility to identify an attorney for that person. We've been taking on that duty for years now. There's an insufficient number of defense attorneys in Deschutes County to handle that workload."

Courts have seven days to appoint an attorney for defendants waiting for one before they’re automatically released from custody. Judge Ashby said, “It is by far the most important factor. It is the factor that is driving this process.”

Defendants are released with conditions appropriate to their charges, such as appearing in court within 30 days of release, obeying all laws, and requirements to stay in the state and to maintain current contact information.

If those rules are violated, the defendant will be taken back into custody. Within those 30 days, the court will try and assign a public defender.

"If they have drug offenses, we’ll order standard drug conditions," Ashby said. "If they have a person victim, they are ordered to have no victim contact.”

The court keeps track of the number of unrepresented individuals. When released, they have alcohol and GPS monitoring available.

“The court has not found at this point that it is appropriate to order GPS monitors for somebody without an attorney, because a release hearing is a critical stage of a prosecution," the judge said.

Defendants have a statutory right to a speedy trial in Oregon within 60 days. A case cannot remain open indefinitely without progress toward resolution, and the state is required to meet timelines to get individuals to trial. 

Judge Ashby said, "There’s not a specific number of days because there are many factors. But cases can be dismissed if they are not timely processed.”

Originally, the list shared with us by the DA had 13 defendants on it. Seven were released, and five that faced possible release have since been assigned attorneys. One is up for review next week.

As of Monday, the one Deschutes County defendant awaiting a decision on release due to not having a public defender was Jeremy Blair. He faces 18 charges related to sexual abuse, rape and incest.