Zachary Heiden, legal director of the ACLU of Maine, fields questions from reporters after a daylong trial in federal court in Portland in November 2013. Credit: Seth Koenig / BDN

Five indigent defendants who remain jailed while their criminal cases are resolved are suing the state agency that oversees their court-appointed attorneys, alleging that the lawyers aren’t providing the representation the Constitution entitles them to and that they should be better supervised.

The American Civil Liberties Union of Maine said Tuesday that it was suing the Maine Commission on Indigent Legal Services in Kennebec County Superior Court on the five plaintiffs’ behalf. The plaintiffs are seeking class-action status for their lawsuit, which argues that how the commission operates deprives indigent defendants of their Sixth Amendment right to the effective assistance of counsel.

“Maine has failed in its duty to train, supervise and ensure the lawyers it assigns to defend poor people’s freedom are qualified for this essential task,” said Zachary Heiden, chief counsel at the ACLU of Maine. “This failure has created two systems of justice: one for the wealthy, and one for the poor. But the Constitution demands equal justice.”

The plaintiffs’ most common complaint is that their court-appointed attorneys do not properly communicate with them or their families. Some alleged that their lawyers refused to return multiple phone calls and did not respond to written requests to meet with them.

The lawsuit argues that the commission has violated state laws and the state and federal constitutions by failing to set and enforce standards for attorneys who participate in the state’s program, monitor and evaluate those attorneys, ensure adequate funding for indigent clients’ legal defense, and train the attorneys.

Maine is the only state in the country without some sort of a public defender system through which lawyers are state employees. Instead, the state contracts with private lawyers through the commission to provide legal representation for people charged with crimes who cannot afford to pay an attorney.

The commission also oversees lawyers appointed in child protective cases and in cases involving the termination of parental rights. The lawsuit does not include allegations concerning representation in those areas.

Heiden said Tuesday that even though the lawsuit did not include those kinds of cases, the ACLU of Maine believes attorneys who handle them also should be properly supervised.

The lawsuit’s allegations about Maine’s system echo problems outlined in reports from the Sixth Amendment Center and the Maine Legislature’s Office of Program Evaluation and Government Accountability.

Joshua Tardy, chair of the Maine Indigent Legal Services Commission, declined to comment on the lawsuit on Tuesday, but said Monday that the commission was aware that the ACLU of Maine planned to file suit.

The lawsuit is asking a Superior Court justice to find that these state law and constitutional violations are occurring and to require the commission to remedy them by providing an effective indigent defense system.

The state’s ACLU chapter supports the creation of an office in Maine that would employ public defenders.

Commission staff have been working to address the shortcomings outlined in the reports, Executive Director Justin Andrus said Monday during the commission’s monthly meeting.

A draft report was circulated outlining some of the steps the state would need to take to move toward a public defender system. Initially, it would hire attorneys to handle appeals to the Maine Supreme Judicial Court, as well as several other lawyers to travel to the more rural areas of the state where there’s a shortage of lawyers, such as in Aroostook and Washington counties.

The draft also proposes changing the name of the commission to the Office of Public Defense “to better align with the anticipated changes to the agency including the incorporation of various public defender offices and the change in the relationship between the agency and indigent persons who receive its services.”

The section of the draft proposal that calls for more oversight of lawyers was criticized Monday during the commission’s meeting by long-time criminal defense attorneys, who said their experience makes it unnecessary. Several lawyers with decades of experience representing indigent defendants said if such strict supervision were imposed, they would no longer accept court-appointed clients.

The commission’s request for funding for a pilot public defender’s office in Kennebec County was not included in Gov. Janet Mills’ biennial budget.