Maine is racing to open two new public defense offices to serve counties where there aren’t enough private attorneys representing poor Mainers facing criminal charges.

On Thursday, Gov. Janet Mills signed a bill authorizing the state, which until 2022 was the only state without public defenders, to hire public defense attorneys who will work in Aroostook, Penobscot and Piscataquis counties, where records show at least 200 defendants are awaiting court-appointed lawyers.

As Mills signed the emergency bill into law, a judge was still considering whether the governor and other state leaders should be added as new defendants in a lawsuit against the state’s struggling indigent legal defense system.

More than 580 Mainers statewide were waiting on Friday to receive a court-appointed attorney, according to information from the courts. Many of these defendants have more than one case pending. Roughly 140 of them are in jail while they wait for a lawyer, their cases unable to move forward.

The ACLU of Maine, which earlier this month added Mills to its lawsuit against the Maine Commission on Indigent Legal Services, alleges that the state’s crisis is a result of its failure to “develop and resource a public defense system” that can keep up with a high number of prosecutions.

But even with the bill’s swift and bipartisan passage, it will not fully and immediately address Maine’s ongoing crisis.

The commission, the agency tasked with opening the public defense offices, will likely struggle to find lawyers to fill the new positions, as they’re already struggling to recruit enough private attorneys for judges to appoint. The agency’s rosters show few and sometimes no attorneys available for a majority of the cases in Aroostook and Penobscot counties.

“There just aren’t enough attorneys to do this work to cover the number of cases we have,” said Jim Billings, the commission’s executive director. “But all we can do is try.”

STUNTED STARTS

The commission still has to wait for authorization from the Department of Administrative and Financial Services to fill the positions that Mills approved Thursday.

L.D. 653 establishes 22 new positions, including a supervisor for each office, four attorneys for each office, paralegals and support staff. The new law doesn’t allocate any new funds to the commission. Instead, it gives the commission approval to spend money it already has on the new attorneys.

Billings hopes the offices could open by the summer, but he couldn’t give a clear timeline because of other factors at play.

Even once the jobs are approved by the state, the commission has to find people who will apply for the positions. Then, once the openings are filled, the new attorneys have to be licensed to practice in Maine.

That can be a roadblock for recent graduates and attorneys moving here from out of state. Billings said attracting both groups are an important part of increasing Maine’s capacity to represent indigent clients. He wants to avoid taking private lawyers who are already working with the commission, and who will continue to do so, and making them public employees.

“I think increasing capacity long-term depends on bringing people who aren’t already doing this work into Maine to do that,” he said

Maine’s first brick-and-mortar public defense office in Kennebec County is already fully staffed, Billings said, and started work last fall.

A rural defender’s unit that was created in 2022 – Maine’s first group of public defense attorneys – and continues to represent indigent clients statewide, but the team has dealt with some turnover and attrition in its first two years. One attorney left for a job in Massachusetts. Another, who moved to Maine and joined the team last fall, is still waiting to be licensed by the state Board of Overseers of the Bar.

Once the new offices are open in Caribou and Bangor, Billings expects that some of the rural defenders will want to join, leading to new openings that can be used for parental custody cases, which the commission also oversees.

Lawmakers on the budgeting committee also are weighing a request from the Judiciary Committee to give the commission an additional $2 million to open an office Down East and another office in central Maine.

THE LAWSUIT

As Maine leaders push for more public defenders, the state is still engaged in a legal battle with the ACLU of Maine over the constitutional failures of the state’s indigent legal defense system.

The ACLU first sued the commission two years ago, alleging that the agency was violating state and federal laws that guarantee attorneys for criminal defendants who can’t afford their own.

The lawsuit was mostly focused on the commission’s supervision of attorneys and the quality of representation.

Superior Court Justice Michaela Murphy rejected two lengthy settlement agreements the commission and the ACLU reached over the last year, both of which offered a four-year improvement process mostly focused on oversight. But neither agreement met what Murphy says is a more pressing need: the defendants for whom there are no lawyers to appoint.

She ordered the ACLU to file a new complaint and ordered it to be ready for trial in June. Murphy says she will address long-term issues with the quality of representation afterward.

The ACLU filed a new complaint on March 8, seeking to add Mills and Attorney General Aaron Frey as defendants. They also named all of Maine’s county sheriffs and asked Murphy to evaluate whether the unrepresented defendants in jail are being held legally.

Last week, Assistant Attorney General Sean Magenis urged Murphy to not add any more defendants to the case. Magenis has been representing the commission throughout the whole case.

Mills’ office would not comment on the litigation after the governor signed L.D. 635. On Thursday, Frey said he could not discuss the allegations against him during an interview on Maine Public.

The ACLU has argued he should be involved as Maine’s lead prosecutor.

“What we seem to be experiencing right now is the attorneys are just not available,” Frey said on “Maine Calling.” “… If there was one answer, if there was a clear way to fix this, I am confident that would’ve been landed on.”

On Friday, Murphy was still considering whether to approve the new complaint and defendants. She also is weighing an intervening motion from a longtime defense attorney and former commission member, Robert Cummins, who is asking that she replace the ACLU with “competent independent counsel,” although he didn’t offer any candidates.

“The truth is that the ACLU and its counsel knew and should have known who to sue and where to sue years ago when it stood by and watched the Sixth Amendment and other constitutional rights of hundreds of presumed innocent indigent accused being flaunted,” Cummins wrote.

“This flagrant disregard of the interests of the class has been compounded when, on two occasions, the ACLU and its counsel have cuddled up with the attorney general and presented a so-called ‘settlement’ that anyone knowing a thing about the constitutional crisis in this state and even less about class-actions law would find unacceptable, as did this court.”

Copy the Story Link

« Previous

Committee endorses amended changes to cannabis industry regulations

Next »

Snow tracker: See how much snow fell in Maine on Saturday