A change in how Oregon public defenders access evidence has spurred friction within the already fraught relationship between county prosecutors and lawyers who represent people facing criminal charges who can't afford an attorney.
A December 28 memo from Stephen Singer, the newly-appointed director of Oregon's Office of Public Defense Services (OPDS), announced that his office will no longer pay district attorney's offices to retrieve discovery evidence—or, documents and other materials related to a criminal case—requested by a public defender.
This practice, which county prosecutors have followed for decades, "was never appropriate from its inception and is not consistent with the law," according to Singer.
Oregon's public defense system is made up of private attorneys and nonprofits that contract with the state to represent those unable to pay for legal defense. Currently, when a public defender requests discovery evidence from a district attorney's office, they're given a bill to cover the cost of a clerk's time spent retrieving the documents. That bill is then sent to OPDS to cover.
Singer, who practiced law in five different states and DC before joining OPDS in December, said that these charges are unique to Oregon. He argues that this is not a cost the state agency is meant to bear, pointing to a state law that mandates district attorneys disclose any "material and information within the possession or control" to defendants who are represented by an attorney.
In a separate letter sent to public defenders on December 30, Singer explained that this doesn't mean prosecutors' staff shouldn't be compensated for their work collecting evidence.
"OPDS has no quarrel that local district attorneys offices should be provided sufficient funding to fulfill their constitutional and statutory discovery and disclosure obligations to our clients," wrote Singer. "That funding, however, cannot constitutionally be done on the backs of our indigent clients nor on their attorneys."
An estimated $6 million comes out of OPDS' budget every two years to pay for these discovery fees. Singer said that the state, which district attorneys represent in court, should include funds to cover discovery collection in district attorneys' budgets.
But Oregon's prosecutors aren't eager to disrupt the status quo.
In a letter to OPDS, the Oregon District Attorneys Association (ODAA) urged the agency to delay the decision until the Oregon Legislature can discuss the issue. ODAA argued that OPDS is misinterpreting the state law regarding a prosecutor's responsibility to provide discovery evidence, because the law—which was amended during the state's 2021 legislative session—doesn't explicitly bar prosecutors from charging defendants for evidence. ODAA claims that county district attorney's offices will be unfairly burdened without the regular payments from OPDS.
Multnomah County District Attorney's office declined to comment on how the fee change could influence operations. In an email to the Mercury, a spokesperson for the Washington County District Attorney's (WCDA) office explained that the change "will not impact" their office. That's because WCDA prosecutors will continuing billing public defenders for discovery expenses.
In his letter to public defenders, Singer said that lawyers who still receive bills from district attorneys offices for requested discovery items should simply forward that invoice to OPDS—who will not pay it. The state agency is prepared to defend any attorney who's penalized by prosecutors for OPDS' nonpayment.
"If at some point a district attorney refuses to provide discovery without payment in advance because OPDS will not pay their invoices, then... immediately contact OPDS," Singer continued. "We will then work with you and provide support to address the issue through negotiation, litigation or in whatever manner is deemed best in that specific situation and for that specific client."
Autumn Shreve, OPDS' government relations manager, said that OPDS would rather be spending the millions it puts towards fees on programs that support impoverished clients facing criminal charges.
"We would be able to distribute that money to help attorneys lessen caseloads, to increase pay to our attorneys, and to expand the general resources they have access to," said Shreve. This would go far for OPDS, which has a record of hitting budget shortfalls that have left attorneys feeling underpaid and undervalued by the state office.
But this concern goes beyond a budgetary complaint. Because OPDS doesn't have the staff to properly audit the fees coming in from Oregon's 36 district attorney offices, Shreve said, the current process effectively dodges accountability and oversight. Fees for certain documents can vary widely between counties, and are prone to seemingly arbitrary changes.
"Right now, OPDS is just a pass-through for these funds," said Shreve. "We don't have staff to determine whether 36 policies across 36 counties are fair and related to the actual costs of providing discovery."
For public defenders, this fee announcement from OPDS is a hopeful sign that change is coming to the state's office that oversees their work. Chris O'Connor, an attorney at Multnomah Defenders, said the memo shows that Singer, wants to send a message as the incoming director.
"He's saying, 'Hey, local DA, do your job... you don’t get to spend the state’s budget anymore,'" said O'Connor. "It shows us that OPDS is interested in picking a fight with DAs to support our work."
It's a welcome sign that follows years of shaky leadership at OPDS. OPDS' former director Lane Borg resigned in March 2021 after being accused of "gross mismanagement" of the office's finances. In August 2021, with OPDS under an interim director, a number of female public defenders accused an OPDS manager of retaliating against women attorneys.
Rachel Phillips, a longtime public defense attorney, said the initiative taken by Singer shows just how lacking OPDS previously was in its leadership. But she sees this decision as just one step in the effort towards improving the state agency.
"Steve Singer is walking into a mess," said Phillips. "What there needs to be is a uniform discovery dissemination process statewide, not this county by county system. Everyone should be on the same page. It’s in the best interest of justice."
The lack of consistency costs attorneys time and money. Phillips explained how some county prosecutors refuse to hand over discovery evidence, and instead direct attorneys to request the documents from the sheriff's department, who can be slow to respond. Some counties can share documents over email, while others charge attorneys for printing and copying fees.
Phillips said it will take perseverance to see a real improvement in the process.
"It’s hard to change a culture that's stuck on idea of 'We’ve always done it this way'," she said.