As the state’s system for providing legal representation to poor Mainers defends itself against a lawsuit claiming it’s not doing its job, state leaders are trying to address the very concerns raised in the suit.

The ACLU of Maine filed the complaint last March against the Maine Commission on Indigent Legal Services on behalf of five Mainers facing criminal charges, all of whom say the state violated their Sixth Amendment right to effective counsel. They allege they weren’t getting enough time with their attorneys, who weren’t responding to calls, and they didn’t understand the evidence against them or the hearings they attended.

Underlying it all are years of concerns that MCILS, a state-funded entity that maintains a list of private attorneys willing to take on these cases, has not been doing enough to recruit, retain and supervise them. The commission has been included in various reports from the Sixth Amendment Center, a state watchdog agency, and most recently the U.S. Commission on Civil Rights.

MCILS is just one segment of a state court system that’s been increasingly overloaded. There was an 80% increase in unresolved felony cases in June 2023 compared to June 2019, according to data from the Maine Judicial Information System, and a 58.5% increase in unresolved misdemeanors.

The Maine Monitor reported that MCILS and the ACLU are nearly ready to present the court with a settlement plan on how to improve legal representation for criminal defendants, attorneys for both sides said Friday during a brief hearing in Augusta.

Significant progress has been made on the agreement “on the terms within our control,” but there remain “two external conditions that need to be satisfied in order for this to happen,” Carol Garvan, legal director of the ACLU of Maine, told Superior Court Justice Michaela Murphy.

Details of the settlement agreement and the two conditions yet to be satisfied were not disclosed Friday, the Maine Monitor reported.

The ACLU and MCILS did not respond Friday to queries from the Portland Press Herald about the hearing.

As the lawsuit has dragged on for more than a year despite various attempts at reaching a settlement, MCILS commissioners and lawmakers have launched several efforts that dovetail with the lawsuit’s intentions.

Earlier this year, the state raised its reimbursement rate for attorneys from $80 to $150 an hour after it found a pool of $2.6 million leftover from a previous budget.

The state hired its first five public defenders late last year and lawmakers are currently weighing the governor’s budget request to add funding for 10 more.

And the commission now has a new executive director, Jim Billings, who took over for Justin Andrus in May.

Billings said Thursday that MCILS is requesting money in the budget to create a “self-sustaining,” brick-and-mortar public defender’s office, in addition to the existing mobile unit, that will also serve rural communities where cases have become increasingly difficult to assign.

But as scores of other bills vie for funding in the winding days of the session, it’s unclear what MCILS will end up with.

“We’re hopeful, but we don’t know if we’re going to get anything near what we asked for,” Billings said. “I think people are supportive, but I don’t know what’s going to come out of the process.”

‘HEART OF OUR CASE’

A few bills considered in this year’s session offer some solutions to problems the lawsuit identified.

In early June, the Judiciary Committee recommended a bill that would allow the MCILS director to report attorneys to the Board of the Overseers of the Bar. It would also give MCILS access to jail logs of pre-trial detainees so they can better track who’s represented and who’s not.

The ACLU and MCILS both testified in support.

“The heart of our case is that the state is obligated to make sure that the lawyers provided for people are adequately screened, trained, supervised, evaluated and supported,” Chief Legal Counsel Zachary Heiden for the ACLU said at a June 6 public hearing.

Assistant Attorney General Sean Magenis, who is defending MCILS in the lawsuit, said at the same hearing that the bill “will improve MCILS’ ability to execute its legislative mandate, to provide services to indigent defendants.”

The ACLU said in a recent statement that it has thrown its weight behind roughly a dozen legislative proposals this year that have to do with the commission’s work, but would not say if any of it was settlement-related.

“These bills would help bring Maine closer to meeting its most basic obligation to uphold the constitutional right of all people accused of a crime in Maine to have adequate legal counsel,” wrote ACLU spokesperson Sam Crenkshaw. “Until the state fulfills its obligations and upholds this fundamental right, we will continue pursuing solutions and holding the state accountable both in court and in the legislature.”

MCILS is also working to change its rules on how many cases its attorneys can accept – a process the ACLU has also weighed in on.

The standards, which MCILS was required by law to enact, could ensure no attorney is taking on more cases than they can handle. However, commissioners have held back on enacting the rules as they wait to see how the latest budget shakes out.

Billings is already worried it could stifle the commission’s ability to provide enough lawyers.

“Putting the caseload standards into effect on day one is going to mean 25% to 40% reduction of availability of counsel,” he said. “It has the potential of making an already strained system, and adding to that pressure, turning up the heat on the pressure cooker.”

The commission’s rosters are at the second lowest they’ve ever seen, staff said this month. Only 165 of the 212 active attorneys on June 13 were accepting trial-level work, staff wrote. More than 70 were over the proposed caseload limits.

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