District Judge Robert Langner sits in an empty courtroom once a week in front of a big screen facing a queue of people Zooming in from the Aroostook County Jail.

Each has been approved for a court-appointed attorney. But the problem, he tells them, is that he has no lawyers to appoint. He agrees their rights are being violated, and he’s frank when he says they’ll likely be confronting the same failure the next week.

He’s one of many judges in Maine who routinely have to tell criminal defendants who can’t afford their own attorneys – and are constitutionally entitled to them at the state’s expense – that no one can take their cases.

Maine has struggled to meet this crucial obligation. Maine Supreme Judicial Court Chief Justice Valerie Stanfill has called the problem a “constitutional crisis,” and other top officials agree.

But they can’t agree on who is at fault.

Some say the state isn’t doing enough to recruit attorneys and that onerous performance standards and newly enacted caseload limits are scaring lawyers away from the work. Others say prosecutors are filing too many cases and making the volume of cases impossible to keep up with.

And no one can agree on what short-term relief might look like for the Mainers in 120-plus cases who were still waiting for lawyers as of Friday.

In November, the Maine judicial system decided to start holding weekly bail hearings for anyone who’s been in custody without an attorney for more than seven days.

Some defense lawyers argue these defendants are being held unlawfully and should be released or have their cases dismissed. But in complex, felony-level cases, which prosecutors say involve victims and safety concerns, or defendants who have allegedly violated earlier bail conditions, judges like Langner say there’s not much else they can do but wait – however long it takes – until attorneys become available.

‘YOU HAVE NOT BEEN FOUND GUILTY’

Michael Fisher was arrested in Aroostook County in October on domestic violence charges. As of Feb. 15, he was still waiting for a lawyer when he appeared on the screen in Lagner’s courtroom for a bail review hearing. He has spent most of that time in jail, except for some time in December when he was released on bail and then violated a no-contact order and was arrested again.

“There’s a constitutional problem here,” defense attorney Neil Prendergast, who often takes on court-appointed work in Aroostook County, said in court.

The Maine Commission on Indigent Legal Services, which oversees defense attorneys who take court-appointed work, asked Prendergast to temporarily represent Fisher that day to advocate for his release, but the attorney said he wasn’t able to take on Fisher’s case permanently because of his existing caseload.

And neither could the agency’s small team of rural public defenders, who had conflicts of interest in the case as well as their own heavy caseloads.

Langner agreed that Fisher’s rights were being violated. But he said he couldn’t in good conscience release Fisher or dismiss his charges given the alleged victims and the interest of public safety.

“You have not been found guilty of any of these things you’ve been charged with – I know that and you know that,” Langner said. “But they’re out there.”

Assistant District Attorney Matthew Hunter urged against Fisher’s release.

He told the court it was “unfortunate” that Fisher didn’t have an attorney, but that Fisher’s criminal case hadn’t suffered as a result.

Hunter went so far as to argue that MCILS and its attorney-performance standards were at fault for a shortage of available lawyers. He pointed to resources the commission has been given, including new public defense positions and raises, and questioned whether those were being used to their full extent.

“We’ve got a state agency,” he said. “They’re responsible for coordinating the appointment of these attorneys.”

Langner, too, felt the agency was at fault. He ordered MCILS to find Fisher a lawyer within 10 days.  

“They have let everybody down,” Langner said. “There has been a clear failure to find an attorney for you. That has to change.”

The judge ultimately found the man a private attorney himself days later.

Jim Billings, the executive director of the commission, said this week that he couldn’t comment on the Aroostook County hearing or its plans for addressing cases like Fisher’s.

HOW DID WE GET HERE?

In Maine, judges are responsible for appointing attorneys, but MCILS is responsible for creating a list for the judges to choose from – and ensuring that the attorneys on that list are qualified, paid and not overworked. The state relies mostly on private lawyers, although Maine agreed to hire its first set of public defense attorneys in late 2022.

“We are constrained by the very statutes that created the commission,” Stanfill, the chief justice, said during her State of the Judiciary address on Wednesday. “We can only appoint attorneys on the commission’s roster, and often there are none.”

“Our trial courts spend hours every week just trying to cajole attorneys into taking cases,” she said.

Some defense lawyers have said MCILS doesn’t exist just to provide bodies in the courtroom – it’s there to provide effective representation.

The commission has tried to recruit more attorneys. The state agreed to pay defense lawyers $150 an hour for MCILS cases, which the commission says is more on par with what prosecutors make.

Stanfill said Wednesday that she was confused about why this didn’t help.

The issue has also cropped up in a lawsuit filed against the commission by the American Civil Liberties Union of Maine, which alleges that the state is failing to meet its constitutional obligations.

At a hearing in September, Superior Justice Michaela Murphy said a proposed settlement in the case was “silent” on what she thought was a big issue – the lack of attorneys at MCILS’ disposal.

“I am, like every other state judge, a witness to what is going on,” Murphy said. “I can’t ignore what happens when I go into the courtroom and try to find lawyers to represent people who are locked up and some people who are not locked up.”

TOO MANY CASES

MCILS told lawmakers in January that attorneys might be leaving because they can’t keep up with the number of cases being filed.

Billings, the commission’s executive director, said in a yearly presentation to the Judiciary Committee that Maine’s indigent defense system is struggling against a large number of criminal cases. The commission was responsible for representing people in more than 32,000 new cases in 2023.

In a survey last fall, more than 75% of the defense attorneys MCILS talked with said they felt overwhelmed by their work, and nearly half said the workload was getting worse as more courts started requiring in-person attendance after years of holding court hearings via Zoom.

“This suggests to me that attorneys are busy and aren’t willing to put themselves on the roster because they’re worried about getting a bunch of new cases,” Billings said.

EMERGENCY RELIEF

Another case filed with the state supreme court sought to release defendants who have been in jail for more than seven days if they still haven’t been appointed an attorney.

Supreme Judicial Court Justice Wayne Douglas denied a blanket procedure for releasing unrepresented defendants from jail, but allowed the attorneys to request release for specific defendants during a hearing in November. The attorneys behind that petition argued that those two defendants’ due-process rights were being violated even though they had a court-appointed lawyer of the day; the lawyer was only able to represent them during their first appearances and bail hearings.

Douglas disagreed in January that these limitations amounted to a constitutional violation. But during Fisher’s hearing last week in Aroostook, Prendergast made the same point.

“I’m in no position to have any real leverage because I can’t take the case to trial,” Prendergast told Langner. “I can do that when I’m appointed to a case. I can’t do that as lawyer of the day.”

In his Jan. 12 order, Douglas said continued delays of full-time counsel are not sustainable, and current short-term remedies “do not address the fundamental need.”

“The longer the delay in assigning counsel, the higher the likelihood that defendants entitled to court-appointed counsel – whether in custody or not – may suffer prejudice in preparing for or resolving their cases,” Douglas wrote.

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