When a young Washington County woman made her initial appearance in court this month, it was a given she would need a state-assigned defense attorney.

She is 20 years old, lives in subsidized housing and receives Social Security for a disability. She had no criminal history but now faces a felony charge of domestic violence criminal threatening with a dangerous weapon for allegedly attempting to stab her boyfriend. 

After spending the weekend in jail, she met for an hour with a lawyer of the day, an attorney whose role was to represent her during her initial appearance, when the court is supposed to appoint a more permanent defense attorney. Her lawyer of the day was Robert Ruffner, calling in to the hearing from Portland over Zoom.

Ruffner soon found there were no defense attorneys immediately available to take over the case – a growing occurrence for low-income Mainers in rural counties who qualify for state-provided legal representation.

Maine is the only state that does not have a public defender’s office. Instead, the Maine Commission on Indigent Legal Services maintains a list of private attorneys who sign up to represent clients who can’t afford to hire one.

MCILS has for years warned about a pending crisis. But the pleas – for a real public defender’s office, or at least for more funding – have largely been unmet in the state Legislature.

The lack of attorneys is prompting some in the system to fight back.

Ruffner asked Washington County District Judge David Mitchell to dismiss the charges against his client, arguing that the state cannot prosecute someone if it cannot provide them with a lawyer.

“She is the type of individual who absolutely, positively needs representation,” Ruffner told Mitchell. “She will have questions that she needs answers to, and not just because she’s new to the system and it’s all new to her but because of what was alluded to in terms of some of the mental health.”  

Mitchell denied the motion, and court clerks in the end were able to find the woman an attorney the next day. But Ruffner said he’s concerned the courts won’t find an attorney as quickly the next time and said he plans to file the same motion for every client in this situation.

Washington County has one lawyer on the roster for state-provided representation as of last week, but only for homicide cases. For everyone else, it’s a last-minute scramble. Even finding a lawyer of the day has been a challenge. Judge Mitchell released three defendants from jail this month because one wasn’t available that morning.

All around the state, defendants are going long periods of time – in some instances weeks – without being appointed counsel. Attorneys say they sometimes aren’t told they’ve been assigned cases until a week after the fact. And sometimes, they say, they’re so busy with the cases they already have that they just have to hand the new ones off.

“In the meantime, poor people, mentally ill, drug-addicted people are sitting in these underfunded, understaffed jails. They’re languishing there,” said James Howaniec, a defense attorney who said he has noticed more attorneys are turning down new case assignments.

The number of attorneys on that roster has been plummeting. It went from 430 in 2020 to 280 in January – and was at 163 as of this month.

“The United States Supreme Court has recognized that this right (to an attorney) is ‘a bedrock principle’ that constitutes the very ‘foundation of our adversary system’ of criminal justice,” Ruffner said in his motion to dismiss the charges. “Because ‘lawyers in criminal courts are necessities, not luxuries,’ Maine is required by law to provide an attorney to criminal defendants who cannot afford legal representation.”

Rural counties have been hit disproportionately hard. In Aroostook County, MCILS identified more than 20 people this year who hadn’t been appointed an attorney or had been appointed an attorney whom they never heard from. On average, each defendant went 60 days without effective counsel. The longest someone spent without hearing from an attorney was 231 days.

Aroostook County’s situation is still dire. The MCILS roster this month showed there were only one or two attorneys accepting new criminal cases. MCILS staff have been pleading with attorneys in other counties to help as they try to meet the requests of courthouse staff.

The problem is bleeding farther south. In Androscoggin and Oxford counties, a limited number of defense attorneys are accepting felony cases, including only two for sexual assault charges. One of those attorneys is in Biddeford, where he is the only attorney accepting sex-offense cases for York County Superior Court.

This doesn’t mean there aren’t attorneys still doing the work. Howaniec, who practices in Androscoggin, Oxford and Cumberland counties, said he had to remove his name from the rosters after he was assigned 70 new cases from September to November.

His caseload now totals more than 150. He is preparing for seven trials scheduled between now and the end of the year. At least four of these clients have been waiting for more than two years, facing serious charges like aggravated trafficking, aggravated domestic violence and violation of a protection order. And he has four appeals to file with the Maine Supreme Judicial Court.

“It’s real for people who are sitting in jail for years at a time now,” Howaniec said.

SOUNDING THE ALARM 

MCILS has never stopped asking for help. The commission has sounded the alarm on the severity of the attorney shortage at legislative meetings for years, but the urgent calls have done little to increase numbers.

MCILS Executive Director Justin Andrus said the commission will offer the first of several one-day training sessions at the end of the month so more attorneys, including those who usually take on civil cases, can begin accepting clients. In return, they’ll get Continuing Legal Education credits that attorneys use to maintain their licenses.

“I believe there is a place for everyone who wants to do assigned work well, and that none of our plans should have any meaningful effect on interrupting the ability of the existing bar to go into the assignment side,” Andrus said. He said there could be 20 to 30 attorneys at the first training session.

Several attorneys on a recent Maine Bar Association call expressed concern about the plan. Would the training be thorough enough for cases that can be so complicated? Will clients receive effective representation?

“These are existing litigators who will receive better training than has ever been necessary to join MCILS,” Andrus said.

But there’s one thing MCILS can’t offer without authority from the state: higher pay.

Attorneys on the MCILS roster earn $80 an hour from the state, but that rate also has to cover their overhead costs. Some say it’s not enough to cover benefits. At least 40% of attorneys accepting MCILS cases earlier this year didn’t have health insurance, Andrus said.

“The rate of pay is not adequate to have people run a law office, have the resources they need to serve their client and pay themselves a reasonable, non-exorbitant salary,” Andrus said.

The hourly rate was increased from $60 to $80 last year.

MCILS asked the state for $13.2 million in emergency funding in September to immediately increase the hourly rate to $150 in order to recruit and retain attorneys. But time is running out on that request, with the regular legislative session beginning next month.

Gov. Janet Mills, who has served as attorney general and district attorney for Androscoggin, Franklin and Oxford counties, told the commission last month that she was “concerned” that the agency had not made enough adjustments to its methods of recruiting attorneys to get more of them to join its roster.

Lawmakers will have another chance to up the hourly rate. The raise to $150 an hour is included in the commission’s $62 million budget request for the next fiscal year. But, even if that raise were approved, it wouldn’t take effect until June 2023. The proposal also faces a long road ahead in a Legislature in which MCILS has struggled in the past to obtain funding for much smaller pleas.

PUBLIC DEFENDERS

Many in the criminal justice community believe creating a public defender’s system would strengthen the state’s ability to provide effective representation.

Maeghan Maloney, district attorney for Kennebec and Somerset counties, said the resources now being spent to bring in private attorneys would be better invested in a system of defense attorneys dedicated to representing indigent clients – and that having such a system would make finding alternatives to incarceration more possible.

“We’ve got the money,” said Maloney during a virtual panel this month with the U.S. Commission on Civil Rights. “We’ve got the need. I think we can do it.”

Andrus said he sees a hybrid system – one in which there are public defenders on state payrolls and private attorneys who pick up cases – as the best approach.

Maine is slated to hire its first five public defenders by the end of this year, after Mills signed legislation in May to make it happen. The process of hiring the attorneys has been slow. At first, a state hiring agency objected to the commission’s salary requests for these positions, which Andrus wanted to be on par with state-funded prosecutors.

But by September, the requests were approved and MCILS had posted hiring notices on the state’s website. The commission will begin making offers to candidates later this month, Andrus said.

Next year’s budget request includes an ask for more public defense attorneys and brick-and-mortar offices to house attorneys handling criminal cases, appeals and post-conviction reviews.

While MCILS officials and the state debate the issues, Ruffner said he is asking Maine judges to do what they can by dismissing charges against defendants who are not receiving the counsel the state is constitutionally obligated to provide.

Judges might not have the “power to do broad sweeping reform necessary to solve the issue,” Ruffner said in court this month, but the more people there are without representation, the more often judges will be asked to consider releasing people from custody or dismissing their charges.

“They are betting that the court won’t do anything,” Ruffner said. “They don’t think that the court will do anything regarding releasing defendants, giving different bail, dismissing their cases, anything like that.”

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