Officials sent pleas to defense lawyers after half of Maine's counties couldn't find qualified representation for poor defendants.
In this March 4, 2009, file photo, a lawyer of the day talks to his client in a Bangor courtroom. Credit: Bridget Brown / BDN

The crisis in Maine’s legal defense system for the poor is worsening, with jailed defendants waiting as long as six weeks to be assigned an attorney and some parents of children who have been removed from home lacking a lawyer days before scheduled hearings, emails obtained by The Maine Monitor show.

Court clerks in nearly half of Maine’s counties — Aroostook, Kennebec, Knox, Penobscot, Sagadahoc, Washington and York — couldn’t find an available lawyer who was qualified to work on cases for 34 people this month, emails show. Maine officials sent pleas at least 13 times to defense lawyers asking for assistance. An attorney was eventually found for most cases.

Maine’s chief trial court judge said situations in which courts are unable to find a lawyer are occurring with “disturbing frequency.” Across Maine, there have been days- or weeks-long delays in assigning lawyers for some people charged with crimes, or who are being investigated by the state for possible child abuse or neglect, or in mental health crises.

“If you don’t have a body to appoint, then that’s a big problem,” Justice Robert Mullen, chief judge of Maine’s superior courts, said in an interview with The Maine Monitor. “And at some point does that become denial of counsel? Does at some point it become grounds for dismissing a case? That certainly can be argued and it probably will be argued if we continue to have delays in finding people to appoint.”

Maine is the only state without public defenders. Instead, the Maine Commission on Indigent Legal Services, or MCILS, contracts with private lawyers to represent adults and children charged with crimes, or parents under investigation for alleged abuse who cannot afford their own attorneys. The system is voluntary.

The number of defense lawyers accepting new indigent case assignments is at a record low. In 2018, there were more than 400 lawyers contracted with MCILS; now there are less than half as many.

Maine is required under the U.S. and state constitutions to provide a lawyer for anyone who cannot afford one. The lawyer is supposed to be assigned early in the case.

In Washington County, Jermaine Henry was booked into the county jail on Sept. 14 on drug charges and appears to have spent six weeks there without an attorney.

The docket report says the court didn’t receive a request to appoint a lawyer for Henry until Oct. 17, State Court Administrator Amy Quinlan said. A clerk emailed MCILS on Oct. 24 for help finding a lawyer and MCILS emailed lawyers the next day.

Seth Levy, an attorney in Portland, agreed to take the case that same day and plans to travel to Washington County this week to meet his client, he said Friday.

Asked if Henry had spent six weeks in jail without a lawyer, Levy said, “I’m concerned that might be right.”

MCILS isn’t responsible for assigning lawyers to cases, MCILS Executive Director Justin Andrus said. His office provides a list of eligible and qualified attorneys for each court, then judges and clerks are supposed to assign cases from that list. But as the shortage of lawyers continued in recent months, clerks have increasingly contacted MCILS asking for help.

Andrus raised another reason for the overloaded system: Prosecutors are simply bringing too many cases to court. MCILS has no control over cases prosecutors choose to file, he said.

“Prosecutors have chosen to charge more cases than the system can defend at this time and the cases are persisting in the system,” Andrus said.

But Danna Hayes, a spokesperson with the Office of the Maine Attorney General, said charging decisions by state prosecutors are based on laws passed by the Legislature and evidence.

“While the challenges facing the court-appointed attorney system are real and impactful … our obligations to enforce the law do not change as a result of challenges to the judicial system at large,” Hayes wrote in an email.

Delays in appointing lawyers

In addition to Henry’s situation in Washington County, at least three other people were in jail without a lawyer for an extended period this month before MCILS intervened, according to a review of publicly available jail rosters.

One was in the Kennebec County Jail for 2 1/2 weeks, facing multiple felony charges before a clerk sent a request to MCILS for available lawyers.

Another man was arrested and booked into jail on a Saturday. The court had not found him a lawyer by the following Thursday and turned to MCILS for assistance.

A third man facing a felony charge spent nine days in the Penobscot County Jail without a lawyer before MCILS was contacted, emails show.

“It’s not that you just eventually get counsel. You need counsel promptly, and long delays can certainly be a denial of counsel,” said Carol Garvan, legal director of the ACLU of Maine.

She said the delay in appointments is a foreseeable result of the state failing to take action on its indigent defense system. In March, the ACLU sued Andrus, MCILS and its commissioners for failing to create and fund an effective indigent defense system. The attorney general’s office is representing the state in the lawsuit.

“The current system, as it exists in Maine, is not working,” Garvan said. “The system, which has always relied entirely on private lawyers in Maine, is in crisis.”

A delay in the appointment of counsel can be equal to not having a lawyer at all, said Robert Ruffner, a Portland lawyer who through MCILS represents people in jail during their initial court appearance as the “lawyer of the day.”

As an example, one person Ruffner represented as “lawyer of the day” was arrested for a second time for violating his bail conditions before Ruffner was appointed an attorney for the original charges.

The lawyer shortage has also had a dire effect in cases involving parents who have had a child removed from their home by the state for alleged child abuse or neglect.

Child protection cases move through the courts rapidly. When a child is removed from a home, the parent is entitled to a hearing within 7 to 14 days and a parent can request the hearing to happen even sooner, said Meegan Burbank, who is a lawyer contracted with MCILS to do child protection cases and is a non-voting member of the commission.

“The idea is that when a child has been removed from their parents’ care without a hearing, a hearing should be scheduled as soon as possible so that the parent can be heard,” Burbank wrote in an email.

But this month several parents whose children have been removed from the home didn’t yet have a court-appointed lawyer assigned to them on the week of their first scheduled court appearance.

MCILS had not found attorneys for three parents involved in two protective custody cases as of Thursday, Andrus said. He declined to comment on whether those parents appeared without counsel, had hearings rescheduled or have not yet appeared in court, citing confidentiality rules.

Judge Brent Davis, the chief of the state’s district courts, said he was not aware of any case where the state had not been able to provide an attorney to parents in a protective custody case.

A MCILS employee sent an email to lawyers at 3:33 p.m. on Oct. 17 asking for a lawyer who could represent a parent at a summary preliminary hearing that Thursday, emails show. The outcome of the hearing would decide whether the child would stay in foster care with a relative, or be allowed to return to the parents.

“These parents, they need attorneys,” Davis said. “There’s a lot of legal questions that need to be answered.”

Pressure builds in strained system

At a conference this week, court clerks said they couldn’t find available lawyers and also perceived hostility from some defense lawyers they contacted, who said they were no longer taking cases and shouldn’t be on the list, according to Mullen.

“Some of the clerks were frankly tearing up in discussing the pressure they felt to find attorneys. And if they couldn’t find attorneys, they felt like they weren’t doing their job. It was really distressing to them,” Mullen said.

Multiple courts don’t have access to a local attorney who is qualified and available to work on some complex cases, MCILS records show.

In multiple courthouses, there are no lawyers willing to accept new appointments to sex offense cases.

There are no lawyers willing to be assigned in eight courthouses to what are known as “juvenile bindover” cases, where the child would be transferred to the adult criminal court system and face potentially longer periods of time incarcerated. The courts were in Caribou, Dover-Foxcroft, Fort Kent, Machias, Madawaska, Newport, Presque Isle and Rumford, MCILS records show.

Several courts also didn’t have a lawyer willing to accept cases involving felony charges against juveniles.

In yet another sign of the overloaded system, just four lawyers statewide are accepting post-conviction review cases, according to MCILS records.

The criminal courts partially shut down during the coronavirus pandemic and are not back to business as usual, Mullen said. The backlog of unresolved cases is worse than anticipated, he said. The courts need to find a way to speed up cases, especially for people in jail, but COVID infections continue to delay trials for weeks at a time, he said.

Mullen suggested prosecutors, MCILS and members of the private defense bar need to get in a room and devise a potential solution, then bring a united recommendation to lawmakers and the governor. The decline in attorneys was just one problem, Mullen said. Shortages of marshals to secure the courtrooms and turnover in the clerk offices all add to the backlog.

A case pending before the Law Court regarding defendants’ right to a speedy trial may also affect the criminal courts. A written decision in Dennis Winchester v. State of Maine is expected soon.

“There are rules on the books that give courts the limited ability to dismiss cases if there’s been an undue delay with or without prejudice. I’m not aware that that’s happened yet. That could be on the horizon,” said Mullen, who at another part of the interview called court-led dismissal a “pretty dramatic, radical step to take.”

“I don’t think that should happen piecemeal or depend on which part of the state you’re in. That’s why we need to get together and discuss a way to try to make our system work. Right now it’s not working,” he added.

Looking for solutions

MCILS has put an immediate price tag of $13.3 million on its proposed fix. The money would increase court-appointed attorney’s wages from $80 to $150 an hour, a level that is expected to attract some lawyers back to the work.

Commissioners who oversee MCILS sent a letter to Gov. Janet Mills and legislative leaders in early October, asking them to convene a special session of the state Legislature to approve additional funding.

Mills has not called lawmakers back for a special session.

Lawmakers can return with a majority vote of all members of each political party, but that also has not happened. State Sen. Jeff Timberlake, R-Turner, a member of the legislative leadership, said a special session was unlikely before the Nov. 8 elections.

“I just don’t see it happening between now and Election Day,” Timberlake said. “The question is then, even if it happens, how do you get the governor to implement it?”

Mills, in emails to commissioners and written statements to the press, has recommended that MCILS recruit newly licensed lawyers and attorneys from large firms. She also instructed the commission to consider proposals by Commissioner Donald Alexander, a retired judge, that would change the trial experience and years of practice needed to work on certain complex cases. Those rule changes will likely take months to write, receive public comment and implement.

The Legislature approved a pilot program this spring to hire five public defenders, in the first step toward a public defender system. But they have yet to be hired.

Andrus said he attended a swearing-in ceremony for new lawyers and has spoken to professional organizations for trial lawyers about joining MCILS. He also provided training to two child protection attorneys so they are qualified for MCILS assignments.

Timberlake was skeptical that there was an appetite from the local bar to participate.

“They think they can get some of these big law firms to use some of their rookie lawyers to do some of the work. I’m not convinced they can do that,” Timberlake said. “Law firms are having the same problems hiring people, keeping people, as everyone else has. They need to keep money rolling in and they can’t afford to do things at a big loss. You’ve got to get paid for your work.”

Timberlake said he wasn’t opposed to the MCILS proposal raising wages to $150 an hour, but it was not a “magic number” and there would need to be a more thorough review of Maine’s public defense system.

Ruffner said he is tired of “people playing politics” with the indigent public defense system.

“The answer is not to draft attorneys. It is not to sentence lawyers to community service. It is to have qualified and trained attorneys — just like the state does — representing these individuals. And if that can’t happen, then the state can’t bring these types of cases,” Ruffner said.

This story was originally published by The Maine Monitor, a nonprofit and nonpartisan news organization. To get regular coverage from the Monitor, sign up for a free Monitor newsletter here.