A Washington County judge ordered the county jail to release three defendants Monday because court officials could not connect them to a defense attorney to represent them before their first appearance.

When someone in Maine is arrested for a crime and cannot afford an attorney, the courts are responsible for providing a “lawyer of the day,” a defense attorney who helps defendants understand their basic rights and why they’re in custody, helps advocate for the most appropriate bail conditions and connects them to the assigned defense attorney who will represent them going forward.

The Maine Commission on Indigent Legal Services, which helps Maine courts schedule lawyers of the day in each county, says the agency found a lawyer for Washington County on Monday but the judge already had issued his order.

While the commission says it always has been able to provide lawyers of the day in every court that requires one, the agency has declared a crisis over its dwindling roster of attorneys. By the end of September, the commission had only about 165 attorneys actively accepting new cases statewide, compared to 280 in January. The commission recently asked the state to call a special legislative session to immediately increase attorney pay.

Washington County Jail Administrator Richard Rolfe said he was notified Monday morning that District Judge David Mitchell had ordered the three defendants released.

“As per Judge Mitchell, we do not have an attorney of the day for today,” Rolfe said. “So all in custody are to be released.”


The three defendants were booked over the weekend and were not able to post bail. One was arrested for violating a protective order and violating the conditions of release. A second person was arrested for possession of scheduled drugs, operating under the influence, operating after suspension and violating the conditions of release. A third was arrested for harassment, terrorizing and violating the conditions of release.

“I’ve been doing this since 2013,” said Rolfe, who’s been in law enforcement for nearly three decades. “This is a first for me.”

The Maine Commission on Indigent Legal Services maintains a roster of private attorneys the courts can call on to defend low-income Mainers. The commission recruits and trains attorneys, and outlines which cases they are qualified to handle.

Commission Executive Director Justin Andrus said Monday that hours before the defendants were scheduled to appear in court his agency found an attorney who was willing to be the lawyer of the day, but Mitchell already had issued his order.

“We were prepared to offer them counsel within an hour or so,” Andrus said. “This was not an instance where there wasn’t someone available.”

Andrus said Washington County clerks first reached out on Oct. 21 to request help for this week. The commission was unable to immediately find someone, and followed up on Oct. 25 asking if Washington County still needed any help, but never received a reply.


“The Judicial Branch remains in constant and regular communication with MCILS about available counsel issues,” state court administrator Amy Quinlan wrote in an email Monday. “The Court shares MCILS’ concern about the very limited number of available attorneys. We continue to work with MCILS to support all efforts to increase the numbers of rostered counsel. This is part of a systemwide problem, but is even more pronounced in rural counties.”


Andrus said Monday that while he can’t comment on the defendants’ cases, the issue is not a lack of available attorneys. Instead, he said pending cases are outpacing the number of private lawyers willing to defend them at the state’s current pay rates.

The American Civil Liberties Union of Maine is suing MCILS, saying the agency is not meeting its constitutional obligations to provide low-income Mainers with legal counsel. The lawsuit takes particular issue with the lawyer-of-the-day program, saying it is under-resourced to the point of deficiency.

The parties are discussing settlement options, ACLU chief counsel Zach Heiden said, but have so far reached no agreements.

“It strikes me that the judge in this case did the only thing he could have done, given the state’s failure to operate a public defense system capable of ensuring timely appointment and adequacy of representation,” Heiden said.

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