AUGUSTA — Attorneys for the state asked a judge Thursday to throw out a class-action lawsuit filed by the ACLU of Maine alleging a broad failure by the state to provide an adequate system of supervised attorneys to represent poor criminal defendants.
A lawyer from the state Attorney General’s Office argued in Kennebec County Superior Court that the civil rights group, which brought the lawsuit in March, has failed to show that the five criminal defendants named as plaintiffs actually suffered a violation of their rights that resulted in judicial prejudice, and that the court does not have the power to mandate more funding for the system without encroaching on the power of the Legislature.
“Of … over 7,000 potential plaintiffs in the state, these are the five that they chose,” said Assistant Attorney General Sean Maginus. “If this is the worst of the worst, they still have not established that there is any connection between the structural faults that they allege and what has happened to these five plaintiffs.”
The ACLU argued that Maine’s Commission on Indigent Legal Services has failed to follow through on its promise to create a robust system of oversight and training for the attorneys assigned to poor defendants. The plaintiffs in the ACLU’s case, four awaiting trial and one awaiting sentencing, say that although they were given court-appointed lawyers, they struggled to contact or have any meaningful discussion with them about their cases.
Other states and jurisdictions have recognized these “sham appointments,” which have the cumulative effect of robbing defendants of their due process rights, said ACLU Legal Director Zachary Heiden.
“That someone has been provided with a person standing next to them in a blue suit and tie, but not necessarily a lawyer who is equipped to provide assistance and counsel in the full respect, that’s the denial of counsel,” Heiden said during arguments.
Maine is the only state in the nation without a public defender’s office, instead reimbursing private attorneys who sign up to represent Mainers who can’t afford their own lawyers.
Zachary Heiden, legal director at the ACLU of Maine Gabe Souza/Staff Photographer
Heiden said the precarious nature of that system, in which appointed attorneys are paid a sub-standard hourly rate and there is little centralized oversight and management, creates a universal risk that any defendant may suffer prejudice. That risk of insufficient assistance, he said, is itself unconstitutional.
Justice Michaela Murphy took the arguments under advisement and will issue a ruling at a later date.
Court appointed attorneys in Maine are paid $80 per hour, up from $60, thanks to a $20 million appropriation by legislators. But it’s still not enough to entice lawyers onto court rosters, which have dwindled in recent years.
The number of lawyers willing to take court-appointed cases has slid from 410 in 2019 to 236 today, and the system is at a near breaking point as a backlog of thousands of cases, held over from the pandemic, lumber toward trial.
Separately, the number of new cases that require state-appointed lawyers has ticked up about 12 percent, said Justin Andrus, executive director of the Maine Commission on Indigent Legal Services, the agency that oversees indigent defense statewide, in an interview after the hearing.
While Andrus refused to take a position on the case itself or respond to the central arguments made by the ACLU, he rejected the ACLU’s contention that his agency now fails in its mission.
Still, he has been advocating for some of the same things the civil rights organization is demanding: more money to pay attorneys, more resources and access to data to help manage and oversee cases, and a deeper commitment from the Legislature to fund indigent defense.
In the last legislative session, lawmakers approved money to hire five staff attorneys to provide coverage in rural areas where it is most difficult to consistently staff indigent cases. But that small number will not make a dent in the roughly 10,000 backlogged criminal cases and the uptick in new cases coming in every week, Andrus said.
Justin Andrus, executive director of the Maine Commission on Indigent Legal Services Gregory Rec/Staff Photographer
The system is teetering, but has not actually failed yet, he said.
“Up to this point we’ve been able to successfully staff every case, we have consistently found counsel,” Andrus said. “Whether we can do it tomorrow is the question, and there will come a tomorrow when we can’t do it. Two hundred thirty-six people is not enough. We are going to fail to staff a case at some point, so when that day comes, my answer is going to have to change.”
Andrus said appointed attorneys should be paid about $150 per hour, nearly double the current rate. That would be enough, he said, for an attorney taking indigent cases to net a salary of about $72,000 and pay for overhead expenses and support staff necessary to effectively represent people in criminal matters. A common complaint of Maine’s court-appointed lawyers – which some cite as they drop off the roster – is that they are routinely outmatched and out-resourced by prosecutors.
“Our people need to be paid at a rate that allows them to have staff, benefits, a reasonable amount of time off, that gives them access to trainings that are not at their expense. Prosecutors just 100 yards from here have all that ability and opportunities,” said Andrus, as he spoke outside the Capitol Judicial Center and gestured toward the Kennebec County District Attorney’s Office “And without being able to provide (those resources), we’re not able to draw people back into the system or draw new people in to ensure we can continue to staff cases.”
Since 1963, the U.S. Supreme Court has mandated that any person charged with a crime that carries the possibility of incarceration be granted an attorney if they cannot afford to hire one themselves. The decision is rooted in the Sixth Amendment language stipulating that criminal defendants “have the assistance of counsel,” along with other basic due process rights, and over the years, courts around the country have expanded and refined what that right means.
Maine’s current system has existed since 2009, but the ACLU argued that even after more than a decade, the agency has failed to establish training standards or a process to evaluate whether attorneys are qualified to take on cases, or to promulgate and enforce caseload rules to prevent attorneys from overloading themselves to make more money.
“While there are many skilled and committed defense attorneys in Maine, MCILS has failed in its constitutional and statutory obligation to supervise, administer and fund a system that provides effective representation to indigent defendants throughout the entire criminal legal process,” the complaint says.
The ACLU said that, because of the low rate of pay, attorneys must take on several indigent clients at once to make ends meet – and that as a result, attorneys cannot give each case the attention it deserves. The effect is a dual system of justice in which wealthy defendants enjoy fuller due process rights by virtue of their ability to pay for better representation, the ACLU argues.
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