
Zach Heiden and Carol Garvan, attorneys for the ACLU of Maine, appear in court at the Capital Judicial Center in Augusta on Wednesday. Ben McCanna/Portland Press Herald
Most people probably don’t know about the lawsuit against Maine’s public defense system, “but nearly every one of those people knows this: If you can’t afford an attorney, you need to be provided with one,” Carol Garvan from the American Civil Liberties Union of Maine told a courtroom on Wednesday.
Garvan was in Kennebec County Superior Court for the start of a three-day hearing focused on Maine’s indigent defense crisis. A judge ruled this month that hundreds of people in Maine who are constitutionally entitled to legal representation have been effectively denied an attorney.
Now, the court must decide what to do about it.
The ACLU of Maine is asking that people be released from jail after seven days without a lawyer, and that their charges be dismissed if they still don’t have one after 45 days. (Charges could be refiled when a defense attorney is available). There are more than 900 adult criminal cases without lawyers, and Garvan said these defendants are spending, on average, 66 days without representation.
Attorneys for the state questioned Wednesday whether this widespread release would be fair to public safety. An assistant attorney general cited a deadly incident in Auburn this summer when a man was released from jail after waiting two weeks for a lawyer.
The state has argued there are already enough remedies for Maine’s unrepresented population: Once lawyers are appointed in the case, they can argue for sanctions in light of their client’s violated rights, and judges have already dismissed charges and released people on an individual basis.
The ACLU says these constitutional violations are so egregious that the harm can’t be undone. They called on a handful of expert witnesses Wednesday, including a criminal defense attorney and a law professor, who expounded on the consequences.
The longer someone has to wait for a lawyer, the harder it is to reinvestigate and defend a case, or to negotiate a fair plea agreement, the ACLU said. Their experts also described the collateral consequences to a defendant’s housing, employment, family relationships and well-being.

Superior Court Justice Michaela Murphy presides over a case between the ACLU of Maine and the Maine Commission on Public Defense Services to determine what, if any, remedies can address the hundreds of criminal defendants waiting for lawyers. Ben McCanna/Portland Press Herald
Eve Brensike Primus, a law professor at the University of Michigan who studies indigent defense systems around the country, also highlighted a hit to the public’s confidence in its criminal justice system. The rights of the accused, particularly the right to their own attorney, is a bedrock principle to our society, she said. Yet there are judges across the state continuously admitting that these rights are being violated and there’s nothing they can do.
“It’s disheartening. It’s deflating,” said Primus. “You can actually see it in courtrooms, the reactions that individuals will have when judges make these statements. It absolutely does affect the faith that people have in the justice system, and whether people are getting a fair shake and the rights honored that they’re supposed to have.”
CONTINUOUS REPRESENTATION
Maine has had some public defenders since 2022, but still relies heavily on private attorneys who agree to take indigent cases. They join different rosters based on case type, their training and experience. Those lists are managed by what is now called the Maine Commission on Public Defense Services. Judges use those rosters to find attorneys for their defendants, and the lawyers get reimbursed by the state at a set rate.
But when those rosters are empty, or attorneys already have too many cases, judges can’t find anyone to appoint.
Walter McKee, who has practiced criminal defense law in Maine for roughly 30 years, testified about the value of having continued legal representation early in a case.
“These are processes that are important to be dealt with, right from day one,” McKee said. “Law enforcement has had a significant amount of time to investigate and follow up. They’re way ahead of the defendant. Those delays are significant, right from the start.”

Criminal defense attorney Walter McKee, upper left, provides testimony via video chat during a hearing in Kennebec County Superior Court on Wednesday. Ben McCanna/Portland Press Herald
He said Maine’s “lawyer of the day” program falls short. These are temporary attorneys who represent criminal defendants during their first court appearance, when no permanent lawyers are available.
As Maine struggles to find attorneys to take on indigent cases, courts have grown to rely even more on a shifting slate of lawyers of the day to represent defendants on a weekly basis, to attempt to reargue bail until another attorney is available.
“It’s very, very different,” McKee said. “The ‘on a continuous basis’ part is essential.”
Assistant Attorney General Sean Magenis asked McKee what would bring him back, as the Maine Commission on Public Defense Services struggles to attract counsel.
“That’s an interesting question,” said McKee, adding his hourly rate is more expensive than what the state reimburses. “I kind of got enough work as it is right now.”
CANDID TESTIMONY
Primus said the ACLU paid her to review Maine’s laws and policies for appointing counsel. She interviewed lawyers and court employees, and observed hearings in which judges met with unrepresented defendants.
Primus said Maine is an outlier. It was, after all, the last state in the nation to hire full-time public defenders in late 2022 after years of relying exclusively on private counsel.

Sean Magenis, an assistant attorney general representing the Maine Commission on Public Defense Services, appears in court Wednesday. Ben McCanna/Portland Press Herald
Primus cited several studies in other states, finding that it actually saves money and improves representation to have a significant public defense presence. It would also help the state attract and retain new, entry-level people doing this work (at a time when the state is struggling to find enough lawyers for these cases.)
She said a similar lawsuit by the ACLU of Michigan spurred positive change in her state, which quadrupled its number of public defense offices over a decade.
“With Maine relying so predominantly on the private bar to take these cases … it’s created a far more significant challenge for you to attract lawyers, for you to keep lawyers and for you to quickly assign lawyers,” Primus testified.
The Maine Commission on Public Defense Services has made the same argument outside of court as the commission seeks more funding for full-time public defense positions from state leaders.
All seven commissioners and their executive director are named defendants in the ACLU’s lawsuit, and Superior Court Justice Michaela Murphy has found them liable for violating the constitutional rights of Maine’s unrepresented criminal defendants.
But the commission has tried to publicly distance itself from the legal arguments their counsel, an assistant attorney general, has made on their behalf.
The ACLU of Maine highlighted various “candid” statements from commissioners in their court depositions. The ACLU is arguing these were admissions of the harm done to unrepresented defendants and the seriousness of Maine’s problem.
“Why do I believe in the Sixth Amendment?” commission Chair Joshua Tardy said in an October deposition that was read aloud in court. “It’s a constitutional right. … I think with unrepresented individuals, if we allowed that, it would cut away at the fabric of our community and our society.”
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