BYLINE: CONRAD WILSON

HOST: LEILA FADEL

LEILA FADEL: It's widely reported that public defenders representing people charged with crimes who can't afford a lawyer are often overloaded with cases. In Oregon, a group of them now say their caseloads are so high they're failing their clients by not providing the kind of defense required by the Constitution. As Oregon Public Broadcasting's Conrad Wilson reports, yesterday, they made their case to the state Supreme Court.

CONRAD WILSON: Anyone charged with a crime is entitled to a lawyer. But for nearly two years in Oregon, thousands of people charged with crimes haven't gotten representation when they're supposed to. There's just not enough public defenders. Despite that, some judges in Oregon are forcing attorneys to take on more cases, even when they say they can't.

(SOUNDBITE OF ARCHIVED RECORDING)

THOMAS HART: Or you have the capacity to do this or not.

WILSON: That's Marion County Circuit Court Judge Thomas Hart during a hearing in June. Tim Downin, a public defender, told the judge it would be hard to take on the client he'd been assigned, a man prosecutors had charged with serious crimes.

(SOUNDBITE OF ARCHIVED RECORDING)

TIM DOWNIN: If you're asking me if I have capacity, I'm going to tell you that I don't have ethical capacity today. Do I have triage capacity? Can I shoehorn him into my caseload? If the court orders me to do so, I'll answer to that, yes. But that is triage capacity, Your Honor. That means that my representation of one person might adversely affect another.

WILSON: Judge Hart responded that his job as a judge was to protect the defendant's rights.

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HART: Quite frankly, I don't have any other statutory duty or obligation than to appoint qualified counsel. And you're qualified. You've been appointed.

WILSON: After that, the nonprofit legal firm were Downin works objected and appealed his forced appointment to the Oregon Supreme Court. This is not just a problem in Oregon. Jon Mosher is deputy director of the Sixth Amendment Center, a nonprofit that studies public defense across the country. He says while this problem varies state to state, and even within states, it can be hard to compare when many places don't track it.

JON MOSHER: Oregon is making lots of news in the state and nationally because of this unrepresented defendants crisis that it's facing right now. But at least it knows how many people in each courtroom don't have a lawyer right now.

WILSON: The drivers of the issue, he says, may look different in different parts of the country - lack of funding, lack of political will. In Oregon, Mosher's nonprofit advised the state on legislation that passed this year to address structural problems in the legal system. Now the state will be able to hire new public defenders and send them to counties where there aren't enough. But completing that process is expected to take years. Mosher says when there are too many cases and not enough attorneys, criminal defendants don't get the protections they're entitled to.

MOSHER: The lawyer must be an advocate for the accused. The right to counsel means more than just being a warm body that happens to have a bar card standing next to you in court.

WILSON: That's what Kristin Asai, the attorney for the public defenders, argued before the Oregon Supreme Court yesterday.

(SOUNDBITE OF ARCHIVED RECORDING)

KRISTIN ASAI: They're being forced to choose between clients. They're being forced to violate their ethical duties and provide less-than-constitutional representation.

WILSON: Paul Smith, who represented the state, argued that the judges are right to appoint a lawyer, even if that attorney says they can't ethically do the job well.

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PAUL SMITH: Courts have inherent authority to call upon officers of the court - attorneys - to represent indigent defendants in criminal cases.

WILSON: The Oregon Supreme Court did not indicate when they might issue a ruling. Experts say that regardless of what they decide, the public defense crisis in Oregon isn't going away any time soon.

For NPR News, I'm Conrad Wilson in Portland.