By Jonathan Levinson (OPB)
On the afternoon of Aug. 2, 22 people gathered in Washington County Courtroom 202C. Just two were women of color: Defendant Cathie Ropati and her lawyer, Washington County public defender Chloé Clay.
For Clay, that’s the norm.
“It’s very lonely,” she said recently. “In order for me to be able to make it through the days, I kind of have to forget about it a little bit. Or else I wouldn’t be able to do my job.”
Ropati, 27, was charged with several misdemeanors following a fight with her former roommate.
She was in court that day for what’s known as a Brady hearing, essentially a meeting at which Clay would argue that the prosecutor in the case had intentionally withheld evidence that undermined the state’s only witness. Earlier that morning, after a separate hearing to change the terms of Ropati’s pretrial release from custody, Deputy District Attorney Dan Hesson wrote the public defender:
“Tsk, Tsk Ms. Clay…” Hesson’s email began, before going on to suggest she had brought up issues in the hearing she shouldn’t have. “On a scale of 1-10, how awesome is my ability to predict what you are going to do.”
Clay thinks Hesson knew his tone was inappropriate; unlike the rest of their emails back and forth that morning, he didn’t copy court staff on this one. She said she found the email nasty and personal.
It was also one in a string of recent incidents in which Clay and another female lawyer of color say they experienced demeaning and racist behavior from Washington County prosecutors, judges and Sheriff’s deputies. Washington County judges and prosecutors have a reputation among lawyers who practice there for being particularly aggressive and unforgiving in the way they treat both defendants and defense attorneys.
Clay says that as a Black woman, she is afforded even less grace and has faced discrimination, disrespect and far harsher treatment than her white colleagues.
The Washington County District Attorney’s office declined to comment citing pending litigation.
It’s not the first time the office has been accused of racism. In 2019, the Oregon Court of Appeals overturned a Black man’s conviction after they concluded the prosecutor in the case, now-District Attorney Kevin Barton, had struck the lone Black juror from the jury.
Clay filed a lawsuit in Washington County Circuit Court on Tuesday over one specific incident. On Nov. 14, 2022, Clay alleges Washington County Sheriff’s Office Deputy David Lyle prevented her from entering a public courtroom while at the same time allowing white attorneys to enter without issue.
Alyne Sanchez, a Latina Washington County public defender, filed a separate lawsuit Tuesday alleging, among other things, a nearly identical incident with the same deputy.
Reality sinks in
When Clay was just a few months old, her parents moved from the Kansas City, Missouri, inner city to Olathe, a wealthy suburb in neighboring Kansas. After decades of white flight from American cities, she said her family members were often the only people of color in their neighborhood.
Because of that, she says, she had no reservations when she came to Oregon for law school about being a person of color in an overwhelmingly white state. It would feel similar to home, she thought.
But Oregon, she says, is different. In Kansas and Missouri, Clay always knew where she was safe and where she was not welcome. The racism was very out in the open.
“Here, I describe racism as more covert,” she said. “It’s like a fake, safe, liberal haven. And that’s a little bit scarier than outward racism because you don’t really know who you’re interacting with.”
She’s the youngest of three children. Her father and two brothers were in and out of the criminal justice system growing up. Learning at an early age about the disproportionately high number of Black people in prison and watching white public defenders struggle to adequately represent her family gave her an early understanding of the Black experience in America. And it made her want to become a lawyer herself.
When she was in college, her brother’s white, male public defender told her: “I’ve seen so many of these.”
“He thought he already knew my brother,” she said. “But also the fact that he is sitting in handcuffs in a courtroom, the judge automatically thinks that he should be there.”
It was formative for her and something she applies in her legal practice today. She has difficult conversations with her Black clients about their appearance in court. She tells them not to use too much slang and to always call the judge, “your honor.”
Washington County public defender Chloé Clay, right, waits for a hearing to start with her colleagues on Aug. 2, 2023 in Hillsboro, Oregon. Clay is suing Washington County alleging a Sheriff’s deputy discriminated against her when he wouldn’t allow her into a courtroom while still allowing white attorneys to enter. (Jonathan Levinson / OPB)
In law school, Clay, now 26, worked as a certified law student representing indigent clients in Washington County. In August 2022, after graduating, she joined Metropolitan Public Defender, an office providing public defense services in Multnomah and Washington counties. Working in Washington County, where defense attorneys say prosecutors offer plea deals that are harder on defendants than elsewhere in the state, had professional benefits.
“I like the fight. I like going to trial more,” she said. “But the reality sunk in really fast of, ‘What does that actually mean to be a Black practicing attorney in Washington County?’”
According to the Oregon State Bar Association, only 56 attorneys — or 0.36% of the state’s licensed lawyers — identified themselves as Black women as of last month. (A Bar Association representative said many people choose not to disclose their demographic information.)
Clay says that reality means she must always put in extra effort to make sure her male colleagues take her seriously. It means dressing nicer than her often more casual male colleagues. It means eschewing traditionally Black hairstyles and straightening her hair instead. It means being more prepared than her white colleagues, because a slip up from a young Black woman will be judged more harshly. And it means watching her facial expressions in court and staying more calm than her white, male colleagues.
Clay said she constantly checks herself to make sure she isn’t coming across as a “mad Black woman” or too aggressive.
“I’m constantly trying to not hurt my client because of who I am,” she said. “There’s some things I can’t change: The fact that I’m a female and the fact that I’m Black.”
She is female and Black in a county that is nearly 80% white, according to U.S. Census data, and where Black incarceration rates outpace national trends.
She is also Black and female in a county where lawyers describe the district attorney’s office as “muscular.”
“You better be prepared for trial,” said Ethan Levi, a criminal defense and civil rights plaintiffs attorney at the same law firm representing Clay. “They’re not going to make a deal unless it’s a weak case or there’s some big mitigating factor that works against them.”
You’re calling me a racist
In a June 16 sentencing hearing before Washington County Circuit Court Judge Erik Buchér, Clay was arguing for leniency for a Latino man charged with harassment and criminal trespassing. She told Bucher it’s important to consider sentencing disparities and the demographics of Oregon’s incarcerated population. Buchér cut her off before she could finish.
“I don’t have time to spend going over statistics of our population in prison,” he said. “I know it’s disproportionate and everything, but then so what you’re trying to tell me then is because your client is Hispanic, by me sending him to prison I’m somehow a racist or something? Why are you bringing these statistics up regarding his race? Would you be doing this if he was white?”
Four seconds of silence followed Buchér’s insistence that race was not relevant to his decision-making. Then Clay pushed back. Race is very relevant, she said, adding that it had been a factor in how the court had treated her client.
They went back and forth:
“So you think I’m biased due to your client’s race?” Buchér asked.
“I do think there has been bias in this case toward him,” Clay answered.
“So you’re saying that I’m biased due to your client’s race? That’s what you’re telling me?” he asked, in apparent disbelief.
“I think it’s part of it,” Clay told the judge. She asked for a chance to explain why she believed that.
Buchér said no. He told her he would not allow her to stand in his courtroom accusing him of bias.
“You’re calling me a racist,” he said, sounding more incensed. “How long have you been practicing, Ms. Clay? One year? And you’re going to come in here and call me a racist? Just because your client is Hispanic?”
The back and forth ended with Buchér placing strict limits on how he wanted to interact with Clay in the future.
“You and me and the state, we’re never meeting again in chambers or anything,” Buchér said. “Especially after you stand there and say that I’m biased toward your client due to his race. I’ve never had an attorney even suggest that, let alone state it in open court on the record. So this is never going to happen again. Not with me.”
It was a remarkable exchange between a young, Black, female lawyer raising well-established sentencing discrepancies and a white, male judge with 23 years of experience practicing law confronted with the possibility of his own complicity in those systemic biases. Clay views the back and forth, captured on the courthouse’s recording system, as outright racism. She winces at the suggestion that the incident was merely an unfortunate encounter between a young lawyer and an irritated judge.
“There is just a very fine line, I think, between being an asshole and being a racist,” Clay said. “I think people just don’t fully understand racism. It’s not calling people the n-word, it’s not hanging people from trees and all of that anymore. It’s different and we’re disguising it as, ‘Well, someone is just being an asshole.’”
Buchér did not respond to a request for comment. Richard Moellmer, the trial court administrator in Washington County, responded for him noting Buchér had previously given Clay’s client probation instead of prison as prosecutors requested. He also said Buchér and the defendant had previously agreed that he would go to prison should he commit the same offense.
The incident in Buchér’s courtroom isn’t why Clay is suing.
A system built to oppress
Clay’s lawsuit and her increasing disenchantment with Oregon and Washington County come just as the state is experiencing a dire public defender shortage.
Clay says an ideal caseload would be 40 to 50; with that many cases, she says, she’s thriving because she’s busy but has the bandwidth to be attentive to even her most difficult clients. Right now, she’s usually handling between 70 and 100 clients at a time.
Speaking on OPB’s Think Out Loud in March, Metropolitan Public Defender Executive Director Carl MacPherson — Clay’s boss — said the 60-year-old promise of a right to an attorney has not been fulfilled. Instead, he said, the system is seemingly designed to overburden everyone working within it, making it unethical for defense attorneys to keep accepting new clients.
“I think the system in the United States was built and designed to do something, and that was, really, to oppress and disenfranchise people,” MacPherson said in that interview. “The number of people we police, arrest, charge, convict, incarcerate, just continues to increase.”
More than three years after the COVID-19 pandemic dramatically slowed the courts, the public defense crisis has only gotten worse. The resulting workload is grinding people down.
Clay hopes more BIPOC attorneys will come work in Washington County. The system needs them.
“But the unfortunate side to that is that they’re probably gonna face similar discrimination. I would love to stop it before it happens,” she said. “It’s just not OK.”
Carrying between 70-100 cases means public defenders are in and out of court and jail — meeting with clients, going to hearings, retrieving or filing paperwork — all day.
In her lawsuit against Washington County, Clay alleges that on Nov. 14, 2022, Sheriff’s Deputy David Lyle chased after her as she walked into the Law Enforcement Center Courtroom in Hillsboro.
Her complaint accuses Lyle of kicking her out after she couldn’t prove she was an attorney. Clay, who had explained to Lyle she was there to retrieve paperwork for a hearing that morning, said she offered her Oregon Bar Association number as evidence but was rebuffed. Lyle insisted that he did not know her and so she could not enter. There are no Bar Association identification cards or other forms of ID issued to attorneys.
“Ms. Clay saw at least two white attorneys freely walk into the LEC Courtroom without being questioned despite activating the metal detectors as they passed into the LEC Courtroom,” her lawsuit says. “Deputy Lyle did not stop, delay, challenge, or require another person to identify or vouch for either of these white attorneys.”
Clay’s lawsuit claims the incident is part of a “pattern and practice of racial discrimination,” and that several other Black and brown professionals have been questioned by Washington County Sheriff’s Office employees, “asked if they were an interpreter,” prevented from entering courtrooms and told they “do not look like an investigator.”
Since notifying the county of her intent to file a lawsuit, the complaint says, Clay sees Lyle at the courthouse daily where he “has glared at Ms. Clay, creating an uncomfortable setting for Ms. Clay to practice law.”
Alyne Sanchez, the other public defender suing Washington County, leveled a nearly identical allegation in her lawsuit.
On Jan. 20, according to the suit, Sanchez had a scheduled appearance at the same Law Enforcement Center courtroom Clay says she was blocked from entering. Lyle “prevented her from entering by placing his body in front of her and stating in a raised voice that she could not go in,” her lawsuit claims.
Sanchez said that after telling Lyle she was an attorney, he made her wait outside the courtroom until her case was called. It was a departure from the norm, made all the more distressing because she claims Lyle allowed other white attorneys into the room at the same time he kept her out. When she later attempted to enter with her supervisor, Lyle told Sanchez that “interpreters were not allowed to go inside the courtroom with bags,” according to her complaint.
A week later, Sanchez said in court documents, a courtroom deputy didn’t intervene when members of the right-wing group the Proud Boys in court for a hearing started yelling threatening, racist remarks at her.
In a written statement to OPB, Sanchez said she has worked hard to become an attorney so she could help people and make a difference.
“And still, it’s not enough,” she said. “In the span of a few seconds, Deputy Lyle made me feel like I was nothing. I have never felt so powerless.”
In a similar incident, on Dec. 7, 2022, Sanchez said a jail deputy said they didn’t believe she was an attorney and demanded some form of proof, a requirement that she says is never asked of white attorneys.
The Washington County Sheriff’s Office needs to be held accountable for “continuing to hire people who are racist” and who “feel like they can treat people who don’t look like them as less than,” Sanchez said.
“It’s so infuriating to see all the racism in this county and to continue to see blatant racism by officers and others in the criminal system,” Sanchez said. “I am so tired of it.”
The Washington County Sheriff’s Office said the agency investigated the allegations but could not share the details because of pending litigation. In an email, county administrative office assistant communications officer Julie McCloud said they don’t comment on legal proceedings. She said the description of events in the two claims “represents only the complainant’s interpretation of events that may or may not have occurred. The facts will be determined as part of the legal process.”
Both Clay and Sanchez said they can’t in good conscience advocate for their clients if they aren’t willing to stand up for themselves. Clay hopes a trial will force the issues she’s raising into the public discourse and lead to changes.
“I want to be able to go and practice in any county without having to think about, ‘Oh, I probably shouldn’t go there because of the color of my skin,’” she said. “I don’t understand why we are still dealing with this in 2023.”
Speaking up publicly carries risk. Clay said she knows Black people who speak out publicly about racism often have their reputations attacked or receive threats. She knows it might make it exceedingly difficult to continue practicing in Washington County or otherwise hurt her career.
But letting white people tell her how to talk about racism that she has experienced is an unacceptable option.
“I have the same degree as Judge Buchér and the DAs, and the only difference between us is that I’m Black,” Clay said. “If I am a Black attorney with the same JD getting treated like this, how are they treating minority clients?”
Civil lawsuits involve money and Clay is asking for $375,000. But she said money isn’t what is motivating her. Only a trial, she says, can provide the public with an inside look at how their local government operates.
“Racism is still going on,” she said. “And we have a lot of work to do. A lot.”
FEATURED IMAGE: Washington County public defender Chloé Clay, right, argues to change her client’s pretrial release terms on Aug. 2, 2023 in Hillsboro, Oregon. Clay is suing Washington County alleging a Sheriff’s deputy discriminated against her when he wouldn’t allow her into a courtroom while still allowing white attorneys to enter. (Jonathan Levinson / OPB)
