Judge rejects proposed deal for state indigent defense system

A judge overseeing a lawsuit between the state’s system for providing legal representation to poor Mainers and a civil rights organization will likely offer more sharp criticism of a scrapped deal she says failed to serve thousands of criminal defendants.

Superior Court Justice Michaela Murphy Joe Phelan/Kennebec Journal

Superior Justice Michaela Murphy will hold a hearing Friday in Kennebec County Superior Court to decide how the case should move forward: if the Maine Commission on Indigent Legal Services and the ACLU of Maine will continue settlement talks, or if the class action case will proceed to trial.

Murphy shot down a proposed settlement Wednesday saying the “highly unusual agreement” offered no emergency relief to potentially thousands of class members.

The lawsuit stems from what many have called an ongoing crisis in the state’s legal defense system, where hundreds of private attorneys are no longer willing to take on court-appointed cases, causing some poor defendants to go days without a permanent attorney.

The ACLU sued the commission over the issue last year and was later granted class-action status. The proposed settlement called on Murphy to pause the lawsuit for four years while the commission advocated for additional funding from the state, and to draft new performance standards and case limits.

But Murphy wrote that she could not approve an agreement unless it provided a “clear path permitting individual Class Members” to “seek emergency relief.”

She said it also unfairly restricts class members from challenging their criminal cases, or pursuing civil action, if they’re impacted by inadequate or nonexistent access to legal counsel. The agreement allowed class members to challenge MCILS for any individual harm, but barred them from challenging the commission for “systemic failures or deficiencies in Maine’s indigent defense system.”

“It would be difficult if not impossible to disentangle claims of deprivation of counsel from claims of systemic failures,” Murphy wrote.

‘PRESUMED INNOCENT’

It was unclear Thursday which path the parties would take.

Attorneys for the ACLU declined to comment on Murphy’s order and next steps through a spokesperson and referred to Friday’s hearing. A spokesperson for the Office of the Maine Attorney General, which is representing MCILS, also referred to tomorrow’s hearing. Jim Billings, the executive director of the commission, also declined to discuss the failed settlement and the judge’s comments.

Neither the ACLU or attorneys for MCILS addressed questions about whether they plan to appeal Murphy’s order or consult the state supreme court.

The entire situation – considering a settlement in a class action case against a state agency, where public rights are involved – is uncharted territory, Murphy wrote. She said the Maine Supreme Judicial Court hasn’t evaluated standards for proposed settlements like these.

And there’s a lot at stake.

When Murphy granted the ACLU’s lawsuit class action status in July 2022, the organization said the class could potentially consist of anywhere from 5,800 to 7,300 people.

The judge’s most recent order describes their situations.

Some will plead guilty, Murphy said, and others will be found guilty in trial. She said some will be acquitted or have their charges dismissed. She acknowledged many pose threats to public safety, but many don’t.

Murphy also acknowledged the differences in class members that will affect their access to attorneys – whether they can afford bail or have to stay in jail, whether they’re homeless, whether they speak English as a first language, whether they face physical or mental disabilities.

“All of them are presumed to be innocent and some of them did not actually commit the crimes with which they are charged,” Murphy wrote. “All of these individuals are entitled to effective, court-appointed counsel under the Maine and United States Constitutions.”

OUT OF TOUCH

When the ACLU filed the lawsuit in March 2022 the organization alleged the state was failing to meet its constitutional obligations to ensure poor defendants have access to effective lawyers.

At the time, MCILS’ list of available attorneys was around 280. That number has continued to drop, Murphy noted, even after the state Legislature agreed to raise attorneys’ hourly pay from $80 an hour to $150.

As of Sept. 6, there were 180 attorneys, about 130 of whom were accepting trial-level work, according to a meeting agenda last week.

The two parties have been in settlement talks since last fall. As a result, no one in this case “knows how bad the problem is,” Murphy wrote.

She said the situation has continued to deteriorate to the point where judges are maintaining their own “limited rosters” of attorneys who are no longer on MCILS’ lists because the official lists are “inadequate” and prevent judges from meeting their constitutional obligations.

“The arrangement may work for the attorneys and for the courts, at least temporarily, but no one is monitoring how this improvising by jurists and the ongoing instability affects Class Members in terms of delay or adequacy of representation,” Murphy said.

The crisis has been well documented outside the courtroom.

Last month, Chief Justice Valerie Stanfill sent letters to seven large firms, asking their attorneys to join MCILS’ rosters.

“The need is dire,” Stanfill had written. “Won’t you please help?”

Some provisions of the agreement might even deplete the rosters further. While proposed rules for attorney performance and caseload standards could ensure effective representation, Murphy wrote, “the timing could not be worse” and it might scare off even more attorneys from working with indigent clients.