Supreme Judicial Court justice allows indigent defense petition to proceed

Justice Wayne Douglas of the Supreme Judicial Court listens to arguments Thursday about whether to allow a petition calling on the state to identify and release anyone in jail who’s entitled to an attorney. He scheduled a hearing for Nov. 14 to consider whether three Aroostook County men who don’t have court-appointed attorneys are being held illegally. Brianna Soukup/Staff Photographer

A justice on Maine’s Supreme Judicial Court ruled Thursday that a civil petition over the state’s indigent defense system can proceed.

The petition, which was filed in September, asked the state to identify and release anyone in jail who’s been waiting more than seven days for a court-appointed attorney.

The first major problem, identifying defendants, already has been solved now that Maine courts are tracking how many people in state custody need a lawyer.

But there still aren’t enough attorneys taking indigent cases. Justice Wayne Douglas agreed Thursday and scheduled a Zoom hearing for Nov. 14 to consider whether three men named in the petition should be released from state custody after waiting more than a week for legal representation.

The three defendants are William Ofria, who has been in jail on charges for manslaughter, driving to endanger and operating under the influence since Oct. 10; Timothy York, who has been in jail for burglary and theft charges since Oct. 11; and Randy LaVoie, who has been in jail for burglary, criminal mischief and drug possession charges since Oct. 3.

Douglas also will hear on Nov. 14 from Aroostook County Sheriff Peter Johnson, who is named as a respondent in the petition because he oversees the jail where Ofria, York and LaVoie are being held. Douglas also is allowing Assistant Attorney General Sean Magenis to be there as an interested party on behalf of the state.

Attorneys Rory McNamara and Robert Ruffner, who filed the petition pro bono, hope a favorable ruling for their clients will offer a process for other jailed defendants who find themselves waiting longer than a week for an attorney.

Attorney Rob Ruffner before a hearing where Supreme Judicial Court Justice Wayne Douglas was considering whether to keep or dismiss a petition calling on the state to identify and release anyone in jail who’s entitled to an attorney and been without one for at least seven days at Cumberland County Superior Court on Thursday. Ruffner, director of Maine Indigent Defense Center, filed the petition alongside co-counsel Rory McNamara. Brianna Soukup/Staff Photographer

McNamara and Ruffner have updated the petition twice, and will update it a third time after Thursday’s hearing. Their first version was filed on behalf of Angelina Dube Peterson on Sept. 20. She spent more than 80 days in two jails without a lawyer, even though two judges deemed her eligible for an attorney at the state’s expense.

Peterson was appointed a lawyer and released on reduced bail two days later. On Oct. 20, McNamara and Ruffner filed an amended petition naming eight people, five of whom now have attorneys.

Douglas agreed Thursday to hear from everyone who’s been named in a petition so far about their experiences in jail without an attorney. McNamara argued Thursday that this will show how “prejudice can occur very quickly to criminal cases without counsel.” It’s harder to schedule important court dates, McNamara said and the longer they wait, the harder evidence might be to find that could help their defense.

REPORT: SYSTEM ‘CHRONICALLY UNDERFUNDED’

Douglas’ decision to consider the petition comes as a federal agency has released a new report on Maine’s indigent defense system, finding it is “chronically underfunded” with severe, long-term impacts to the thousands of Mainers who rely on court-appointed attorneys.

The U.S. Civil Rights Commission released the report Wednesday. It was authored by an advisory committee that held several meetings last fall with attorneys, state leaders, law professors and former criminal defendants who have relied on court-appointed attorneys.

Assistant Attorney General Sean Magenis, right, listens as attorney Rory McNamara addresses Supreme Judicial Court Justice Wayne Douglas at Cumberland County Superior Court on Thursday. Brianna Soukup/Staff Photographer

The report described a “lack of political will” in Maine to invest in improvements to indigent defense in Maine. It called on state leaders to increase funding for public defense, decriminalize certain offenses and increase oversight of private attorneys taking court appointed work.

But state officials say they already have done this. Lawmakers authorized the Maine Commission on Indigent Legal Services to open the state’s first brick-and-mortar public defense office in Kennebec County. The agency agreed to advocate for even more offices in October. Last year, Gov. Janet Mills signed a budget that increased the hourly reimbursement rate private attorneys receive for court appointed work, from $80 an hour to $150 an hour.

The commission and the ACLU of Maine, which sued the agency in March 2022, are working on a settlement agreement that calls on the state agency to improve the regulation and oversight of its attorneys.

“I think there’s a lot of will to create a robust, sustainable system,” Judiciary Committee Chair Sen. Anne Carney, D-Cape Elizabeth, said on Thursday. “We can see the work that has been done and the engagement going forward.”

Even with these changes, Maine still doesn’t have enough attorneys taking court-appointed cases. According to a spreadsheet Maine courts sent to the Maine Commission on Indigent Legal Services on Wednesday, courts across Maine needed attorneys for 150 cases, 61 of which were for people in custody.

McNamara and Ruffner said Thursday afternoon that they hope their petition, if granted by Douglas, will offer a process for immediate relief to anyone in a Maine jail without an attorney.