Judge Michaela Murphy presides over a status conference Monday in the ACLU of Maine’s lawsuit against the state and the Maine Commission on Public Defense Services. Screenshot from Zoom proceeding

A judge’s plan to release unrepresented criminal defendants from Maine jails because their right to representation has been violated might be paused until the state supreme court weighs in.

Superior Court Justice Michaela Murphy was supposed to hold a hearing Monday to lay out how she would start releasing people from custody. Instead, she held a public conference that ended with an attorney for the state questioning whether they could move forward without the high court’s involvement.

Murphy has been able to oversee the ACLU of Maine’s lawsuit against the state and its public defense agency for more than two years, mostly without pause, despite several appeals of almost every decision she’s issued. But at Monday’s status conference, Assistant Attorney General Paul Suitter, who is representing the state’s interest in the case, argued that Murphy doesn’t have the authority to move forward pending his appeals to the Maine Supreme Judicial Court.

Suitter said that Murphy’s plans for releasing people from jail and dismissing certain charges using the state’s “writ of habeas corpus” process is not immune to appeals-related interruptions.

Habeas cases are typically filed on behalf of individual defendants who say they’re being jailed illegally. Murphy’s decision in March was unprecedented in that it allowed habeas relief to a large, indeterminate number of people all at once.

“It’s the state’s position that the rules are very specific as to what type of action is permitted to go forward,” Suitter said.

It was unclear Monday whether Murphy will refer the question to the high court, heeding Suitter’s objections, or proceed on her own. She did not issue an immediate ruling, and pointed out judges around the state have been holding regular hearings to consider pre-trial release for each defendant who has been without an attorney for at least a week since November 2023.

Despite previously stating that the state wasn’t opposed to releasing defendants from jail as long as it’s done safely, Suitter suggested Monday that even if the state supreme court greenlights mass habeas proceedings, state law still wouldn’t allow for felony-level cases to be considered.

Assistant Attorney General Paul Suitter, who is representing the state’s interest in a lawsuit filed by the ACLU of Maine over the public defense crisis. Screenshot from Zoom proceeding

This was the first time Suitter has made such an argument, Murphy said, questioning why he hadn’t pointed this out in previous filings.

He said the nature of who would actually be eligible for release wasn’t clear to him until recent court filings from the Maine Commission on Public Defense Services, which he said laid out that many people are facing felony-level charges.

It also never came up in a similar case that two southern Maine attorneys brought in 2023, seeking to have people be released from jail after going 10 days without an appointed attorney. The defendants in that case were facing felonies, Murphy pointed out.

“The folks that are being held, restrained, facing felony charges, they are not entitled to relief?” Murphy asked hypothetically.

“This is a form of relief that is just not available to some newly identified members of the plaintiff’s class,” Suitter said. “It’s not a question of whether someone’s constitutional right has been violated.”

Murphy also weighed in on a plan she received from the commission Thursday, laying out their own ideas for addressing the state’s public defense crisis. Murphy previously criticized the commission for not prioritizing communication with these defendants and instead relying on the courts to identify clients themselves.

In that plan, the commission promised it will redirect some administrative staff, who oversee the reimbursement of private attorneys and training, to instead work on identifying criminal defendants who are waiting for lawyers. The commission also promised to bolster its recruitment efforts and consider easing back on training and experience requirements.

State lawmakers are also considering emergency legislation that would require the commission to reimburse attorneys appointed by judges, even if those lawyers haven’t met the commission’s rules for eligibility. The Senate could take up the legislation soon, after the Judiciary Committee voted Monday afternoon on finalizing the bill’s language.

A spokesperson for the governor said her office is still “reviewing the bill as amended.”

“I was very happy to see that there were a number of steps taken since the date of the hearing that, to me, indicates a commitment to providing counsel on an ongoing basis, no matter what happens with this litigation,” Murphy said.