Superior Court Justice Michaela Murphy presides over a hearing at Kennebec County Superior Court in September 2023. The state of Maine and a civil rights group are both urging Murphy to end a yearslong legal battle surrounding Maine’s indigent legal defense system by issuing a decision without a jury trial. Brianna Soukup/Staff Photographer, file

The state of Maine and a civil rights group are both urging a judge to end a yearslong legal battle surrounding Maine’s indigent legal defense system by issuing a decision without going through a jury trial.

The ACLU of Maine sued the state, arguing that Maine is violating the constitutional rights of thousands of criminal defendants who are entitled to legal representation but can’t afford it.

Superior Justice Michaela Murphy ordered both sides to prepare for trial after she rejected several proposed settlements last year. The trial was scheduled for early December, but Murphy is delaying the case while she considers the dueling motions for a final ruling.

The complaint, which also names the Maine Commission on Public Defense Services as a defendant, has undergone several changes since it was filed in Kennebec County Superior Court in March 2022.

The class action case focuses on eight people who have been criminally charged and are entitled to a lawyer. Some of these plaintiffs say they waited weeks to receive their court-appointed attorney. Others say they received a lawyer but were provided ineffective representation.

The ACLU is seeking a declaration from the court that the state has denied criminal defendants their constitutional right to a lawyer.

The group is also suing all of Maine’s sheriffs, who oversee the county jails, and asking that they be ordered to release criminal defendants who have been waiting too long for an attorney.

The sheriffs have stated in court records they are only involved because they are “custodians” of the criminal defendants for whom the lawsuit was filed.

“The County Sheriffs do not take a position on the merits of the Plaintiffs’ lawsuit, generally, nor do they intend to participate in litigating the case,” their lawyers wrote in a motion earlier this month.

Other potential forms of relief could include dismissal of criminal charges, according to the ACLU’s complaint, or providing criminal defendants with money so they can hire their own lawyers.

The ACLU of Maine argues in a new filing that it’s clear the state, through the Maine Commission on Public Defense Services, is failing to provide attorneys to people during “critical stages” in their criminal cases.

“The law could not be clearer: once the right to counsel attaches, indigent criminal defendants are entitled to counsel during all phases of the prosecution, from initial appearance on,” lawyers for the ACLU wrote in their Friday filing. “And the headline facts are indisputable: data from the court system reports over 1,000 cases where indigent defendants currently languish without counsel, and the vast majority (about 95%) have gone without counsel for seven days or more.”

DEFINING THE HARM

The ACLU goes on to argue that this “denial” of representation harms criminal defendants in plea negotiations and in their efforts to mount a defense – as time passes, evidence grows old and disappears. Some defendants feel pressure to plead out of fear they could be waiting indefinitely for a lawyer. The ACLU says these waits can also harm a person’s access to housing and employment.

But a lawyer for the state argues in an opposing filing that the ACLU hasn’t pointed to any harm that can be traced back to these alleged failures.

The state disagrees with the ACLU as to what constitutes a “critical stage” in a defendant’s case. The state says it is meeting its legal burden by providing temporary lawyers of the day to defendants who still don’t have their own attorneys at bail hearings and initial appearances.

(The ACLU says the state’s lawyer of the day program is “under-resourced to the point of constitutional deficiency.”)

The state’s attorney also argued that the Maine Commission on Public Defense Services doesn’t have the power to address what the ACLU of Maine is asking for.

“Courts cannot grant relief that is beyond the power of the named defendant to bestow,” wrote Assistant Attorney General Sean Magenis. “(N)either MCPDS nor its executive director and commissioners have the power to release pre-trial detainees from custody, or to dismiss criminal charges.”

The ACLU tried earlier this year to add Gov. Janet Mills and Attorney General Aaron Frey as defendants.

Murphy rejected the request to add Mills but initially agreed in May that Frey could be included as a defendant before dismissing the counts against him in August.

The ACLU had argued he was a relevant defendant because of his authority to oversee prosecutions around the state.

Murphy later ruled that this authority doesn’t directly contribute to the lack of attorneys available for indigent criminal cases.

“Indeed, Maine law expressly gives control over the provision of counsel to other actors, including MCPDS and its officers,” Murphy wrote in August.