People For the American Way Foundation

Biden Judge Provides Deciding Vote in Decision Requiring Oregon to Provide Counsel to Poor People Detained Awaiting Trial No Later than Seven Days After Charges Filed

Biden Judge Provides Deciding Vote in Decision Requiring Oregon to Provide Counsel to Poor People Detained Awaiting Trial  No Later than Seven Days After Charges Filed

Judge Salvador Mendoza, nominated by President Biden to the court of appeals for the Ninth Circuit, provided the deciding vote in a 2-1 decision that a lawyer must be provided to poor people in Oregon being detained before trial no later than seven days after being charged. Otherwise, detainees must be released prior to trial, subject to conditions set by the trial judge. Judge Mendoza joined an opinion written by Judge John Owens, who was nominated by President Obama. to which Trump nominee Patrick Bumatay dissented. The May 2024 decision was in Betschart v Oregon.


What is the background of this case?                                         

 Since at least 2022, when it severely cut compensation provided to lawyers who represent poor people charged with crime, Oregon has faced what Judge Owens called a “public defense crisis.” The Supreme Court has long held that poor people charged with a crime are entitled to defense counsel, but nowhere near enough lawyers are available in the state to meet the need. For example, from March to June 2023 alone, ‘the number of unrepresented defendants” in Oregon “increased by 198 percent.” By September 2023, “almost 3000 people” were awaiting their constitutionally guaranteed counsel. Nine months later, “more than 100” of these people remain in jail awaiting trial, without counsel to represent them at bail hearings or conduct pre-trial investigations to try to prove their innocence. In fact, without counsel to represent them at trial, these individuals must remain in jail indefinitely, even though they have been convicted of no crime. More are added to this “unthinkable situation” every day.

In July 2023, Walter Betschart and nine other indigent individuals in prison awaiting trial without counsel in Washington County, Oregon, filed a class action, in which the state intervened as a defendant. The complaint explained that the detained poor people were suffering from violations of the Sixth Amendment, protecting the right to counsel, the Eighth Amendment, banning cruel and unusual punishment, and the Fourteenth Amendment, guaranteeing due process of law.

After extensive briefing and hearings, the district court found that the detainees were likely to succeed and were suffering irreparable injury to their rights, and so granted a preliminary injunction. The order required that counsel must be provided to all poor people arrested for alleged crimes within seven days of their initial appearance in court when they are formally charged. Otherwise, the injunction provided, the individuals “must be released from custody” subject to conditions set by state court judges.  Oregon appealed the injunction to the Ninth Circuit.

How did Judge Mendoza and the Ninth Circuit Rule and Why is it Important?

 Judge Mendoza cast the deciding vote in a 2-1 ruling by Judge Owens that affirmed the district court’s injunction and sent the case back to the lower court so that it can proceed. Until a final result is reached or the case is settled or otherwise resolved, therefore, the injunction remains in place and poor people charged with crime cannot remain in jail for more than seven days without appointment of counsel.

Judge Owens carefully analyzed existing precedent and the record in the case in a 39-page opinion. He explained that under “long standing” precedent, the court had jurisdiction to consider the case and the authority to approve the injunction, He wrote that the individuals were likely to succeed on their claims, especially since the lack of required counsel “prevented them from preparing for or proceeding to critical stages” prior to trial, such as bail hearings or pre-trial investigation. He also agreed with the district court’s conclusion that the detained individuals “will continue to suffer irreparable harm” and that “the public has an interest” in a “functioning criminal justice system and the protection of fundamental rights.”

Oregon and dissenting Judge Bumatay strongly disagreed, with Bumatay calling the majority opinion “reckless and extreme” and  claiming that it amounted to a “judicial jailbreak.” Owens carefully responded to each such argument. As he concluded overall, the dissent’s approach “is an ode to classic judicial overreach.” Despite the false “judicial jailbreak” assertion, he went on, “Oregon could solve this problem overnight simply by paying appointed counsel a better wage. It is Oregon, and not the district court, that created this crisis.” The argument of the dissent and Oregon, he noted, “ignores decades of controlling precedent and effectively erases the Sixth Amendment from the Constitution.”

The opinion made possible by Judge Mendoza’s deciding vote obviously helps Walter Betschart  and the many other poor people unjustly imprisoned without counsel and before they are even put on trial. It also sets an important precedent concerning the right to counsel, particularly by rejecting the view of Oregon and Judge Bumatay that the constitution guarantees counsel only at the trial itself and not at critical pretrial stages. This is particularly true in the Ninth Circuit, which includes California, Oregon, Washington, Alaska, Arizona, Hawaii, Idaho, and Montana. In addition, the ruling serves as an important reminder of the significance of promptly confirming fair-minded nominees to our federal courts.