A superior court judge is allowing the American Civil Liberties Union of Maine to include the attorney general in a lawsuit that accuses the state of failing to provide lawyers to poor Mainers.

Maine Attorney General Aaron Frey Press Herald photo

The Kennebec County Superior Court on Thursday granted the ACLU’s petition to add Attorney General Aaron Frey to the ongoing lawsuit, but the court denied the inclusion of Gov. Janet Mills, arguing that the governor is “immune from judicial coercion.”

The case is expected to go to trial next month.

The ACLU first sued the Maine Commission on Public Defense Services (formerly the Maine Commission on Indigent Legal Services), a quasi-state agency tasked with finding and overseeing court-appointed lawyers, two years ago.

The original version of the complaint focused on allegations that the commission was failing to adequately supervise the attorneys it’s charged with overseeing, and that criminal defendants were being denied their right to effective counsel as a result.

In the two years since the original complaint was filed, “matters have become gravely worse,” the ACLU said. Hundreds of Mainers who are constitutionally entitled to a lawyer don’t have one and are waiting weeks, even months, to be appointed one by a judge.


Between 2017 and earlier this year, the commission went from working with more than 400 attorneys to overseeing just 295 – only about 130 of whom are currently accepting new cases.

The number of people who have not been appointed an attorney has skyrocketed by almost 500% over the last six months, according to a recent report from the ACLU of Maine.

More than 630 people were without an attorney, as of May 8, the report said. Of them, 144 were in custody with no legal representation, and 373 had been without an attorney for at least 30 days.

After at least two failed settlement agreements, Superior Court Justice Michaela Murphy ordered the ACLU to file a new complaint that addresses the more pressing issue of defendants going without lawyers. The amended complaint, which named Frey and Mills, was filed in March. The complaint also names every county sheriff because they oversee the jails where more than a hundred defendants without lawyers are being held.

Zach Heiden, ACLU of Maine’s chief counsel, called the worsening crisis “unacceptable” and said the court’s latest order will allow the organization to address the full scope of the situation.

“Ultimately, Maine must follow the law and uphold the people’s constitutional rights,” he said.


The case will go to trial on a two-phase schedule, according to the ACLU. The first phase will focus on whether the state has denied people the right to counsel by failing to provide them with an attorney at all, while the second will focus on the issues raised in the initial lawsuit – the lack of adequate supervision and training resulting in ineffective assistance.

The ACLU’s complaint alleges that many of the violations are a result of the state’s failure “to develop and resource a public defense system that is capable of responding to the ever-growing demand for prosecutions.”

Maine was the only state without a public defender’s office until 2022, when lawmakers agreed to create the first team of state-employed defense lawyers.

In March, the Legislature passed emergency legislation to open a public defender’s office in Aroostook, Penobscot and Piscataquis counties, where there are a high number of unrepresented defendants in jail. The law – the result of bipartisan negotiations in the Judiciary Committee – established 22 new positions.

The Attorney General’s Office could not be reached Saturday to discuss the decision.

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