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Defender dilemma May 29, 2007

Posted by FairSentencing in : Current News , trackback

A hard-working but lowly paid resident of Oregon who is accused of a crime may have a hard time getting a competent attorney.

If that person qualifies for food stamps, he would likely qualify for a court-appointed attorney. But for anyone with even a slightly higher income, the state uses a Privately Hired Attorney Fee Schedule to determine if a defendant qualifies for court-appointed counsel; that schedule varies widely from county to county and hasn’t been updated since 1991.

For example, the state estimates that a person accused of aggravated murder in Benton County would need $25,000 to hire an attorney. The estimate is the same in most other counties in the state, including Multnomah.

If the state determines the defendant can afford $25,000, he would be denied a court-

appointed attorney.

But some private attorneys scoff at that figure as representative of what counsel would actually cost.

“I can’t imagine it would be less than $100,000,” said Wayne Mackeson of Portland.

The fee schedule arose from research done 16 years ago, according to Kathryn Aylward, director of the Contract & Business Services Division in the Oregon Office of Public Defense Services.

“We took a survey of local attorneys and asked, ‘What would you charge for these kinds of cases?’” Aylward said.

They got a range of fees and settled on 25 percent higher than the lowest fee given for each type of case to create the fee schedule.

For a manslaughter case, the state estimates it would cost $5,000 to hire a private attorney in Benton County. Ensor said he had just defended a client in such a case.

“That’s ridiculous,” he said. “Most local attorneys aren’t going to accept a manslaughter case without a $10,000 retainer.”

And to defend the whole case would likely cost at least $20,000, he said. If the case went to trial it would cost much more because of the need to hire expert witnesses.

The U.S. Constitution doesn’t guarantee the right to the best-available defense, Ensor said, only the right to a competent defense.




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