Rebecca Newman is a forensic accountant, and a good one: she runs Portland-based Forensic Accounting Services, the state’s oldest forensic accounting CPA firm.
For years, Newman has worked on cases for the lawyers at Oregon’s Office of Public Defense Services (OPDS)—the state office charged with providing “constitutionally competent and effective legal representation” to people in the criminal justice system who need public defenders.
But in 2020, during the COVID-19 pandemic, the office informed Newman that it was changing its payment processes and would no longer be paying her roughly $300 per hour rate. They were only willing to approve hourly rates of up to $200.
“I just decided I wasn’t going to do the work anymore,” Newman said. “And then I got a call from an attorney who had gotten my name from a list serve that I was on, and that, as far as he knew, I was the only forensic accountant who did this work at all—and I had to tell him I wasn’t doing it anymore.”
The attorney, Newman said, appealed to OPDS to allow him to hire her for his case. OPDS said he couldn’t, at which point he appealed to a judge to get a special approval to hire Newman for his case.
But that level of attention and effort is not typical. OPDS does not accept flat rate budgets and does not accept standard hourly rates. The result, Newman said, is that public defenders in Oregon are struggling to find forensic accountants willing to do work on their clients’ behalf—work that can, in some cases, make or break their defenses.
“The hourly rate they’re offering is something no one accepts, and I find it really frustrating that no one in this bureaucracy is willing to face the reality that people need this work done but they cannot get it done at the rate that the state is willing to pay,” Newman said.
Newman’s experience is not unique. Shawn Blehm, a private investigator based in Polk County, said he was paid so little through his jobs with ODPS during his first several years working with the department that he had to take another part-time job.
“It took me probably five years to basically get to a point where I could do it full-time,” Blehm said. “I had to do it part-time at first because I couldn’t afford to do it. For approximately the first 10 years I worked at OPDS, they paid us $29. No cost-of-living raises, no cost of anything raises.”
Blehm said his hourly rate has since increased to around $40, but he said it’s still nowhere near the $150 per hour he charges for work on non-OPDS cases.
Despite the relatively low pay, Blehm has continued to partner with OPDS. He says he enjoys the work and the opportunities it provides to help right wrongs in the criminal justice system, and he knows he’s meeting a need—for many years, Blehm said, he was the only private investigator working in the entire county.
But not everyone continues to work with OPDS in spite of the low pay. Newman has largely stopped working on public defense cases. So has Joshua Hunking, a defense lawyer, who started his legal career as a public defender doing cases in the public defense system.
Hunking left to run a private firm—in part, he said, because of OPDS funding limits that meant he couldn’t often secure the experts he felt he needed to best defend his clients.
“That is the rule,” Hunking said. “Not the exception. That is the rule: you will not get the best expert doing their best work for this person unless you just get lucky and somebody wants to give charity to your particular client for some reason.”
Even when Hunking found outside experts to contribute to his cases, he said they were often overworked because OPDS’ low pay rates forced them to take on more casework than they otherwise would have. By and large, that held true across many different professions.
“It’s everybody,” Hunking said. “It’s the lab tech guys, it’s the psychologists, it’s the medical doctors, it’s the forensic nurses—there are all sorts of different people you need in providing a proper defense to someone to be able to actually get the facts you need to determine whether or not a crime has been committed or if there’s mitigation. It’s all of them.”
The people OPDS’s funding problems hurt most, of course, are the people OPDS defends—criminal defendants who are disproportionately likely to be poor and non-white. Newman is clear-eyed about the consequences.
“The whole point of the public defense department, in my opinion, is that it’s supposed to provide an opportunity for people who don’t have money to defend against these criminal cases,” Newman said. “Somebody’s freedom can get taken away… and having that happen to somebody who doesn’t have the money or doesn’t have the connections to know who to hire strikes me as incredibly unfair.”
The lack of public defenders in Oregon has been laid bare by Multnomah County District Attorney Mike Schmidt, who now publishes a weekly list of cases his office dismisses due to a lack of state-provided defense attorneys.
Schmidt has called the public defense crisis a “threat to public safety,” noting felony cases are routinely thrown out because defendants don’t have access to a state-provided attorney. Often, cases reach the statute of limitations for prosecution after being delayed due to lack of counsel.
According to the D.A.’s office, the court dismissed 285 felony and misdemeanor cases during an eight-month period in 2022. Of those cases, 180 were dismissed after being set over one or more times.
A source at OPDS said the office is well aware of the problem—as is the state legislature. SB 337, signed by Gov. Tina Kotek earlier this summer, provides for pay raises for attorneys, investigators, and interpreters working on public defense cases.
That bill, passed with Democratic support, is a start. But Hunking’s short time as a public defender, he said, gave him a clear picture of just how many people being prosecuted for crimes in Oregon are innocent and how much help they need from the system.
“I started doing these cases, and after six months, I found three innocent people that were my court-appointed clients,” Hunking said. “And there were varying circumstances, but they were innocent… and in six months, finding three of these, I was like, ‘Whoa, this is concerning to me.’”
It’s not just that experts believe OPDS should be paying more for their services—in some cases, like the one Newman was hired for, courts have ordered OPDS to up their pay.
Investigators and contractors deal with other aggravations in their work with OPDS as well.
“The process of being paid and the scrutiny of OPDS is tough to deal with in itself,” Blehm said. “I’ve gotten to where I basically have all my hard costs covered for 60 days out, because you never know when you’re going to get paid.”
The challenge will be winning the political support necessary year after year to fully fund a functional public defense system that gives defendants without significant financial means the same quality of representation richer defendants have. That, ultimately, is what Newman most wants to see.
“The impact to me is not significant,” Newman said. “I can choose to do this work or not. I have plenty of other work to do. It’s really insignificant, from that perspective. I’m just so offended by the idea that people are having to go to prison because their attorneys couldn’t hire someone who could do the work.”
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