Citing 'Sixth Amendment nightmare,' 9th Circuit allows pretrial release of defendants without lawyers
A federal appeals court upheld an injunction Friday that requires Oregon to release pretrial defendants from custody if they have not received a lawyer within seven days. (Image from Shutterstock)
A federal appeals court upheld an injunction Friday that requires Oregon to release pretrial defendants from custody if they have not received a lawyer within seven days.
In a 2-1 decision, the 9th U.S. Circuit Court of Appeals at San Francisco said a district judge did not abuse his discretion when he ordered the release of such defendants, subject to reasonable conditions. Defendants charged with murder are excluded from the release order.
The Associated Press, Oregon Public Broadcasting and Above the Law have coverage.
Writing for the majority, Judge John B. Owens said Oregon had created a “Sixth Amendment nightmare” through changes that made indigent defense work “financially untenable.” Many of the private lawyers who handled the cases stopped taking them.
Those changes, adopted by the Public Defense Services Commission in 2021 and 2022, altered compensation and caseloads in a bid to improve the quality of representation.
The result is a lawyer shortage, leading to a situation in which “an innocent person may languish in jail for months awaiting trial,” Owens wrote.
The decision upheld findings by U.S. District Judge Michael J. McShane of the District of Oregon in a habeas class action lawsuit.
McShane said the habeas petitioners were likely to succeed on their claim of a Sixth Amendment violation because they lacked counsel to help them prepare for or progress to critical stages of their cases.
The dissenter, Judge Patrick J. Bumatay, agreed that the Sixth Amendment protects against a lack of counsel in critical stages of the case but said there is no independent Sixth Amendment right against being held in pretrial custody without counsel.
Bumatay called McShane’s injunction “reckless and extreme” and said the seven-day rule is “an incredibly short deadline cut from whole cloth.”
“The 9th Circuit is now complicit in a judicial jailbreak,” Bumatay wrote.
In response, Owens said the dissent ignores “bedrock Sixth Amendment cases and dismisses every Sixth Amendment violation that occurs prior to a jury verdict as ‘collateral.’ That is incorrect. The Sixth Amendment is not a haphazard jack-in-the-box that occasionally appears when cranked.”
A footnote in Owens’ opinion notes that legislation in Oregon is reforming the public defense system, partly by replacing the Public Defense Services Commission with a new agency in the state government.
“Despite these early reforms, the crisis persists,” the footnote said. “Many of Oregon’s planned reforms will not become effective until the late 2020s and into the 2030s.”
A draft report released in March found that Oregon needs about 500 new attorneys for indigent defense, according to prior reporting by Oregon Public Broadcasting. At that time, more than 2,500 defendants did not have an attorney, including more than 100 in custody.
Owens is an appointee of former President Barack Obama, while Bumatay is an appointee of former President Donald Trump.
The case is Betschart v. Oregon.
