
The Capital Judicial Center in Augusta where Superior Court Justice Michaela Murphy will hold a three-day hearing over possible solutions to Maine’s public defense crisis. Dylan Tusinski/Morning Sentinel
Maine has spent more than two years debating how to solve a public defense crisis that many say has been in the making for decades.
A judge has ruled that the state’s system for providing attorneys to those who cannot afford their own isn’t meeting its constitutional obligations and has ordered a three-day hearing in Kennebec County Superior Court to discuss possible fixes.
Here’s a recap of the legal case that led to this key moment.
What is the case about?
It started out as an argument over the quality of the representation that the state was providing, but quickly pivoted to encompass the more urgent issue of people simply not being able to obtain lawyers at all.
Five criminal defendants represented by the American Civil Liberties Union of Maine sued a quasi-state agency in March 2022, then known as the Maine Commission on Indigent Legal Services.
The ACLU said its clients’ court-appointed lawyers were too busy or too dismissive of their concerns. All but one plaintiff had pleaded not guilty to their charges and were concerned about their ability to defend themselves ahead of trial while isolated in jail. The one plaintiff who pleaded guilty said she felt pressured by her appointed lawyer because he had too many other cases to pay attention to.
The ACLU said it wanted the commission to create new caseload standards and more closely track how well attorneys do their work.
Both parties were working on a settlement agreement for much of 2023. Then Superior Court Justice Michaela Murphy refused to accept any of their offers.
Why wouldn’t the judge let them settle?
By the time official settlements were presented, there was a growing number of criminal defendants who needed court-appointed lawyers but weren’t getting them.
At the end of last year, people charged in roughly 980 criminal cases were waiting for representation. Data consistently shows that about a quarter of them have remained in jail; some have spent weeks, sometimes months, waiting for an attorney.
Murphy told the parties that by only addressing attorney standards, they were ignoring a pressing need. She ordered the ACLU to file a new complaint that addressed the larger picture, which they did in May.
So now it’s not just a lawsuit about ineffective representation — it’s a lawsuit about not offering any representation.
How does Maine’s public defense system work?
Until late 2022, Maine was the only state without any traditional public defenders in state court.
For decades, the state relied only on private attorneys who volunteered to take on 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.
A few years ago, those rosters started running dangerously low.
The commission tried temporarily relaxing some of its training and experience requirements after hearing criticism from prosecutors and state leaders, who still say the commission hasn’t done enough to make the work more welcoming to lawyers.
But still there are fewer attorneys available than ever to take new cases. And even after the governor and the Legislature increased the pay from $80 an hour to $150, the commission says it is still struggling to find enough attorneys for this work in all case areas, not just criminal.
They’ve cited attorney burnout as one reason. Many private lawyers are retiring or leaving the field for other reasons.
Throughout this period, Maine has started setting up a more traditional public defense system. It began with a mobile rural defender unit in 2022, which took criminal cases in some higher-need areas.
Soon the commission opened its first brick-and-mortar criminal defense office in Augusta and is now also staffing offices in Bangor and Caribou. Another office will serve Androscoggin, Franklin and Oxford counties and a fourth will open Down East.
But until all of those are up and running, the commission is still relying mostly on private attorneys for this work.
Who exactly is being sued?
Technically, the ACLU is suing the seven appointed board members of the Maine Commission on Public Defense Services (some of whom have left and been replaced since 2022) and their executive director, who was hired about a year after the lawsuit was filed.
But the group is also suing the state as a whole for failing to meet the constitutional requirement that anyone accused of a crime who cannot afford an attorney must be appointed one.
The ACLU even tried to add Attorney General Aaron Frey as a defendant, but Murphy dismissed him from the case in August. She has also denied a request to let the ACLU sue the governor.
So the attorney general’s office is completely removed from this case?
Not quite.
The attorney general’s office is actually representing the commission, as it often does when state agencies are being sued.
But some commission members have publicly complained that the way the assistant attorney general assigned to the case has defended them is inconsistent with their own stances, particularly when it comes to disputing the crisis and releasing unrepresented defendants from jail.
Is there really a crisis?
Yes. Almost everyone involved in the system agrees on this.
Valerie Stanfill, chief justice of the Maine Supreme Judicial Court, acknowledged it in a state of the judiciary speech last year, but Murphy was the first to rule that there is a widespread violation of Mainers’ rights under the U.S. Constitution.
In a ruling on Jan. 3, she found the commission liable for these failures, but she hasn’t yet decided whether the entire state of Maine is violating these rights.
Do other states have this problem?
Maine is not alone, nor would it be the only state to offer emergency relief to people who have waited too long for lawyers.
In Oregon, a U.S. District Court judge issued a temporary order that defendants must be released within seven days of being charged if they don’t have an attorney (although that doesn’t apply to defendants who commit new alleged crimes while out of jail).
In Massachusetts, courts for almost 20 years have required that defendants be released from jail within seven days if they don’t have a lawyer, and that their cases be dropped within 45 days.
What happens now?
Murphy will consider remedies during the three-day hearing that started Wednesday. She is expected to hear testimony from defense attorneys, the commission director and legal experts, and consider oral arguments from attorneys on both sides.
The ACLU has suggested she release people from jail if they’ve been waiting longer than seven days for counsel. The organization has also suggested dismissing cases if a person has been waiting at least 45 days for representation.
Victims rights advocates and prosecutors have voiced concerns about releasing people accused of violence against another person, especially in domestic violence cases.
We don’t know yet how the hearing will end or when Murphy will decide on relief.
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