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Monday, January 21, 2008

News Public Defender: “We’re Not Social Workers.” The Mercury Goes Back To Court.

Posted by Matt Davis on Mon, Jan 21 at 1:30 PM

I spent Friday morning shadowing my second public defender in two weeks, cementing my first impression that my job and probably, your job, too, if you’ll allow me to stereotype the Mercury’s demographic for a moment—is/are far, far, far easier than theirs. Here’s why…countycourthousedoor.jpg

The Multnomah County Courthouse on SW 4th may look like a hospital on the District Attorney’s website, but it is anything but sterile inside. In the space of two and a half hours there I saw two people burst into tears, one man scream “it’s a white man’s world, you’re full of shit” at his own attorney, and a pretty well-drawn “pure evil” knuckle tattoo on a skinhead who looked like he meant it. Having braved the line round the block to go through the courthouse metal detectors, I slowly put my outfit back together—seriously, whom am I going to assault with my cuff links?—and went to meet public defender Liz Wakefield on the fourth floor. Read all about it, after the jump.

The elevator opened on some distinct humanity: A man with a lolling jaw and the vacant stare of heavy meds walked past a group of three sharp-suited DAs in frantic discussion, I think, about one of their divorces. They were all oblivious to the smiling elderly gentleman sat next to them in his bulgingly camel-toed shell suit, spirited away from his wheelchair temporarily to the fantasy world of his paperback, Rainbow Rider.

In all, 50 bewildered people were gathered around. An obese teenage mother on a hardwood bench bounced her baby in its pushchair up-and-down, up-and-down on the marble floor. Next to her, a soft blanket and a bottle of baby-fuss mixture: Isomil Advance. It, like the bouncing and the blanket, did not seem to be working, and I thought “poor kids,” referring to both of them. I also thought, as usual: “I am overdressed.” Oh well.

It’s a public defender’s job to shepherd these folks through the criminal justice system, giving each and every one of them the best quality legal advice while simultaneously managing a caseload dwarfing that of a desk clerk at your local DMV. It’s also a public defender’s job to somehow maintain sanity over the long term, if at all possible.

Many Portlanders’ only experience of a courtroom is to serve on a jury, but few of us, me included, have much understanding of how few cases ever actually make it to trial, or of what it takes to get them there.

That level of chaos is about typical,” said Wakefield, as she led me with incomprehensible calm through the throng towards a pre-trial conference room, her un-spilt 20oz cup of Earl Grey in one hand, a cell-phone and whopping bundle of case files in the other. “Much of my work is about multi-tasking.

Wakefield has been in criminal defense since 2001, according to my distractedly-taken notes. She has bob-cut brown hair, wears stylish lightweight glasses, and gives an overall impression both of experienced toughness and approachable sensitivity. She doesn’t wear heels to court for pretrial conferencing because there’s too much walking involved—instead, an elegant pair of shell-toed black flats combine with a tailored tweed jacket, long black scarf and dark skirt to convey the look of someone you can rely on, albeit someone lighthearted enough to be still capable of laughing amidst her job’s pretty constant madness.

Inside the pre-trial conference room, three district attorneys (starting salary, in excess of $60,000, paid by the county) sat on one side of a table covered in boxes of case files. Opposite them sat three public defenders like Wakefield (average starting salary, around $40,000, paid by the state through contracts with the legislature in Salem—there’s an ongoing fight there for more equity), with two more PDs standing behind them, and another, lounging Sinatra-like on a ratty old couch in a white shirt with a white tie. For some reason, the PDs dressed more boutique chic than the DAs, who all seemed content with Banana Republic, perhaps accompanied by a string of pearls. Sorry. Enough fashion writing.

An industrial 1970s coffee machine sat defeated and unplugged in the corner as the two sides negotiated in the bluntest of terms about the merits and disadvantages of every single case in the boxes, one by one.

Before we met, Wakefield had given me a flow chart documenting a case’s track from initial arrest to trial—eight steps in all in 8pt New Roman, at most of which, some kind of alternative track is possible. As briefly as possible, I’ve tried to paraphrase what the flowchart said. If you think the following process is complicated, imagine trying to understand it having skipped your medication, perhaps without a roof over your head, or at the very least with your job and family security dependent on your total comprehension of these three paragraphs:

Once a suspect is arrested for an alleged incident (1), they will be given a citation by the arresting officer (2), which the District Attorney will decide whether or not to pursue based on the officer’s arrest report, either a “no complaint,” or a “signed complaint,” (3). If the DA issues a “no complaint,” perhaps because of insufficient evidence or a botched police report, then the suspect is free to go about their business.

Next step, for charged suspects, is arraignment (4), when the suspect is read the formal charges against him or her and decides how to plead (guilty or not guilty). In Portland, less serious crimes, all non-person misdemeanors, for example, usually grocery store theft, are arraigned in community court, where I went last week. Other crimes are arraigned in the regular courthouse. The suspect enters a plea, after having consulted with a court-appointed attorney, or their privately appointed attorney (5).

If a suspect pleads guilty in community court, they have the chance to get their charge dismissed in exchange for community service. If they plead not guilty in community court (as the raging grannies did, for example), their case goes over to the regular courthouse and follows the normal course (6). Once the case is there, assuming it isn’t diverted or deferred as, for example, DUIs often are, to appropriate drink/drive treatment and prevention programs, the case goes to pre-trial conference (7).

Thank God for lawyers, eh? What a mess of judicial nonsense! Which brings us back, with Wakefield, to the pre-trial conference room and its broken coffee machine last Friday morning. Because she supervises new attorneys, Wakefield had just five cases to discuss with the DAs last week. Her supervisees, meanwhile, had between 15 and 20 to deal with, each, in the space of about two hours. Wakefield waited her turn.

I can’t tell you any more about what happened in there—it’s off the record, in the interest of client confidentiality. But it was rapid, and for a layperson, bewilderingly complex. The four possible outcomes of a pre-trial conference are:

(1) for the case to be “set over” until more evidence or witnesses can be gathered by either side; (2) for the client to change his or her mind and plead guilty and proceed to sentencing; (3) for the judge to issue a ‘bench warrant’ for the person’s arrest because they haven’t shown up for their pre-trial conference, and (4) for the case to proceed to jury trial. Think Perry Mason, 12 Good Men and True, the whole shebang.
While Portland’s DA is renowned for getting cases to trial quicker than other jurisdictions in Oregon, nevertheless, some cases can be stuck in pre-trial here for up to a year. Nobody will say so, but it's in the system's interests for as few cases as possible to end up in trial, because such "justice," as most of us tend to think of it, is outlandishly expensive and there simply aren't enough judges. Nevertheless, it is the criminal defender's responsibility to push for their cases to go to trial, and once they are there, to win. If it's, er, appropriate, of course.

From conferencing, we returned to the throng outside the elevators to seek out Wakefield’s clients. Of the five, three had shown up. The first, a middle-aged white man in an Oregon Ducks cap, had his case set over while the state found more witnesses. The second, an African American gentleman also aged about 50, needed reminding by Wakefield to head down to Walgreens and refill his medication, and to return to court for his next pre-trial date as his case was being set over.

We aren’t social workers,” Wakefield told me, after talking with him on the stairs. “But they’re our clientele. If someone isn’t taking their medication, they’re not going to be able to function in court.

Wakefield’s next client was out of state, caring for his dying mother. Wakefield lined up for ten minutes outside the criminal procedure courtroom to plead with a judge not to issue a bench warrant, since she’d had “good contact” with the man and she expected him to return to Oregon soon. Her request was granted and his case was set over.

I think you fundamentally have to like interacting with people and to find them interesting to do this kind of work,” Wakefield said. And it’s striking how much humanity she employs in the everyday practice of her work. Courtrooms and lawyers are often portrayed on TV (or at least, on The Wire, occasionally) as inhumane and sterile, but the reality, at least here in Portland, is more complex. And frankly, more watchable.

You’ll hear horror-stories from Texas—from whence Wakefield originally hails, not that you can tell from her accent—where public defenders have fallen asleep during trials. Wakefield has been called a “public pretender” more than once but from what I saw, she was sincere and forceful in her effort on behalf of each and every client.

The argument in Portland is about how best to help people,” she said. “Whereas in Texas, it seems nowadays just to be about whether or not to.

Next up, Wakefield found a client being defended on the sixth floor by another lawyer, on a different charge. The woman was undergoing drug treatment and was banned from driving, and did not seem concerned about beating the DUI charge for which Wakefield was defending her—the likely consequence of which was more drug treatment and another driving ban.

“This is important,” Wakefield told her. But I'm not sure it sank in.

Wakefield’s last client never showed up, and will have a bench warrant on her record from now on.

“It’s a shame because she has a good case,” Wakefield said. “But she has other charges pending and it’s difficult for some people to keep track of all the different dates they have to show up to court for.”

Wakefield thinks a sense of perspective helps her to deal with the emotional pressure of her job.

“I used to work in juvenile court,” she explained. “When you talk to a 13-15 year-old about decisions that are likely to affect the rest of their lives, the longer I did that kind of work, the more I thought, 15-year-old brains are not complete. Most 15-year-olds can’t even envision where they’ll be in ten years. So these cases are different.”

I also have a friend who does death penalty work,” she continued. “Once you’ve done that, sitting next to a guy who might be going to jail for 10 days doesn’t really seem that bad. A college professor once said 'it's great that we have people willing to go to jail for us to learn how to be good lawyers'.”

I think she was joking. But still, you've got to laugh.

Like many, Wakefield feels Portland needs to do more to prevent people in mental health crisis being brought into the criminal justice system. She feels a mental health court, like the one being proposed by County Chair Ted Wheeler for an experimental run starting this summer, would do much to relieve the system of its assumed role as mental health provider. She feels a sub-acute facility—so that cops have somewhere to take those in mental health crisis—would alleviate much of the burden, too. In the short term? Fat chance.

I had one case where the client had gone to Providence hospital for treatment for an attempted suicide,” she says. “He’d cut his hand and had all sorts of psychological problems. But Providence said ‘we’ve bandaged you up and you have to leave now,’ so he went and called 911 from a callbox, saying ‘I think I want to commit suicide by cop. I want to hurt myself.’”

“The police responded, all of them were CIT trained, and my client was 100% compliant. They charged him with disorderly conduct for bleeding all over the callbox, and took him to jail,” Wakefield continues. “And in court, all the officers said ‘we never thought this was going to trial, we just couldn’t leave him there.’ Simply, that should not be the situation we have to face.”

Indeed not. Thanks so much to Liz Wakefield for showing me round. Once again, I found the experience most enlightening—all the more so, thanks to her insightful and patient conversation.


I agree that public defenders are woefully underpaid and understaffed, but before you go painting D.A.s as fat cats, know that their starting salary is usually between $35k and $55k, much less than those starting at private firms.

If that sounds like a lot, also know that the majority of starting lawyers are also looking at over 100k of student loan debt.

Your article was quite good, but the broadswipe at D.A.s was kinda cheesy, and a little unfair.

My "article," Foil, was outstanding. But you may have a point. The $60k starting figure was an estimate by Wakefield which she told me to check—I didn't check, and I appreciate you picking me up on it. The disparity remains.

Still, outstanding. Don't forget.

Your post (if I want to acknowledge your semantics game, and I should, as "article" was most definitely used in an improper context) was very good, maybe even bordering on outstanding - but was it actually there? No. Sorry. In my humble (and perhaps useless) opinion the Banana Republic quip kicked it back over the border.

If San Diego is outstanding, your post was somewhere approaching North Tijuana.

Regardless, thanks for writing and posting. It was a very interesting read.

I'll settle for North Tijuana, foil. Thanks for commenting.

A PD would start at $39,677.04. The pay scale for a starting attorney at Metropolitan Public Defender [the largest indigent defense contractor in the county] can be found here: http://www.mpdlaw.com/attorney.htm

Looks like a Multnomah County Deputy DA starts at $50,473.29 a year. Plus they get some of that sweet PERS action.
The pay scale for the Multnomah County District attorney is here:

What is PERS? And do PD's get it?

No, PDs get MRSA.

PERS is the state retirement package. Depending on what tier you are it can be quite a lot of money. Since public defenders in Oregon are not public employees they don't get PERS. DAs do.

So: Is this fair? Aren't the scales of justice supposed to be equal? If we're paying people more to prosecute cases than we are to defend them, don't the alleged criminals get a raw deal?

You should do the same thing and shadow a young DA or something soon. Could be interesting to see it from that side. I think the whole system is a mess personally.

Also, It is good that there is people like PD Wakefield in the world, if there wasn't we would all be in trouble!

Oh, I intend to. I have a couple of DAs in mind, actually.

And yes, absolutely.

Thank you Matt for the great posts on our semi-maligned profession.

I would disagree with this statement however: "Nevertheless, it is the criminal defender's responsibility to push for their cases to go to trial".

Our responsibilty is to do what's best for our clients. For a variety of reasons, only very rarely does that mean going to trial. These include: lack of any real trial issues, judges who will punish you for going to trial, a plea deal which removes the posibility of a felony, the fact that many clients would have to sit in jail for months awaiting trial, etc. Trials are the exception, not the rule (whether it should be that way is another question).

Thanks mate, you're right. I love lawyers.

I'd be curious to see a comparison of caseloads between PD's and DA's.

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