Report: Commission needed to direct indigent legal defense

By Judy Harrison, BDN Staff
Posted March 05, 2009, at 9:21 p.m.

PORTLAND, Maine — A group of judges, lawyers and legislators has recommended that the Maine judiciary get out of the business of overseeing the delivery of legal services to defendants who cannot afford to pay lawyers.

The 120-page report of the Indigent Legal Services Commission was posted Tuesday on the court system’s Web site. It recommends that more than $10.5 million now in the judiciary budget to pay for indigent legal defense be moved to a budget line in the General Fund and be administered by a commission to be created this session by the Legislature.

No new money would be needed to create or staff the commission, Mary Ann Lynch, spokeswoman for the judiciary, said Thursday. The money to fund it is included in Gov. John Baldacci’s budget, she said. About 10 positions now funded by the judiciary would be moved into new commission’s budget.

Funding for the salaries and benefits for those 10 positions is included in the $10.5 million in the governor’s budget, according to Lynch.

The Indigent Legal Services Commission, created last year by the Legislature and headed by Justice Robert Clifford of the Maine Supreme Judicial Court, concluded that an independent commission would:

— Provide independent oversight for delivery of indigent counsel services.

— Better ensure the cost-effective delivery of indigent legal defense.

— Improve the quality of representation.

— Ensure the independence of counsel.

— Establish uniform policies and procedures for providing legal services.

In many other states, the question of whether indigent legal services should be independent of the judiciary has gone to litigation and states have been ordered to create commissions similar to the one being proposed in Maine, according to Zachary Heiden of the Maine Civil Liberties Union.

“This being Maine, the MCLU is glad that people have come together to solve the problem collaboratively,” Heiden, who served on the Indigent Legal Services Commission, said Wednesday. “The MCLU has been a part of this process from the beginning and we are optimistic we will be able to put in place a system to protect everybody’s rights.”

In 42 states, including all of the other New England states, according to the report, indigent legal services are provided by an agency and funded by an appropriation independent of the judiciary. With the help of screeners in some Maine courthouses, judges now determine, in almost every case they handle, whether a defendant qualifies for a lawyer at state expense. The same judge also appoints a lawyer to represent that defendant and signs the voucher that allows the attorney to be paid.

“This recommendation is not about lawyers,” Clifford said in the press release issued with the report. “It is about insuring that the poorest among us, who are faced with the imminent loss of freedom or parental rights, have access to quality representation, at a reasonable cost to the taxpayer. An independent entity overseeing the provision of these services will be better able to address issues of competency and efficiency than 50 judges scattered statewide.”

It also is about money.

Since the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright, indigent defendants facing jail or prison time have been entitled to legal representation. That means lawyers must be paid for by the government, either state or federal, that is bringing the charges. The state also pays lawyers to represent poor parents who are facing the loss of their children because of alleged abuse or neglect and lawyers to act as guardians ad litem — who under the proposed changes would remain under the supervision of the judiciary — to represent the interests of the children.

The amount of money needed to pay lawyers has proved impossible to predict and has become a drain on the rest of the judiciary’s budget, the report concluded.

The indigent defense fund “cannibalizes” the rest of the judiciary budget because it is not separate, Chief Justice Leigh I. Saufley said in June. An increased number of criminal and child protection cases caused a looming $1.5 million shortfall in the fund in the fiscal year that ended on June 30, 2008. Only by implementing a hiring freeze, cutting back on court security, increasing filing fees in civil cases and moving money from other budget lines in the judiciary budget was a six-week shutdown of the system averted, she said.

If similar budget overruns occurred under a new commission’s oversight, money to pay for constitutionally mandated attorneys would have to be found. How that would be accomplished is not outlined in the report.

In recent years, according to the report, the demand for constitutionally mandated legal services has increased substantially, in part because of the rising number of child protective hearings requiring counsel and an increase in the number of criminal cases with mandatory jail time.

A growing percentage of criminal defendants, the report concluded, are indigent and entitled to free representation. In fiscal year 2008, 42 percent of all juvenile defendants and 61 percent of all Superior Court defendants qualified for indigent legal services.

In addition, the number of cases in Superior Court, where felony charges are filed, grew nearly 20 percent from fiscal year 2007 to fiscal year 2008. That increase primarily was due to recent changes by the Legislature to the criminal code that turned crimes that previously were misdemeanors and did not require jail time into felonies based on prior convictions or aggravating factors.

The American Bar Association in 2002 established 10 principles necessary to design a system that provides effective, efficient, high-quality, ethical, conflict-free legal representation for criminal defendants and others unable to afford a lawyer. The Indigent Legal Services Commission’s report said it had recommended many of the changes with the ABA’s principles as guidelines.

Maine received a failing grade on every benchmark but No. 7, according to Rob Ruffner, head of the Maine Indigent Defense Center founded in December 2007.

“I think the recommendations the [Indigent Legal Services Commission] has made are a good, solid first step,” said Ruffner, who also served on the commission. “By creating a permanent commission, there will be someone responsible for indigent defense that will be answerable for the quality of that defense.”

The quality of the legal services provided by lawyers who represent indigent clients is a subject that judges are reluctant to discuss.

Ruffner said last year that major deficiencies in the current system included lawyer pay that has been frozen at $50 an hour for nearly a decade. He also cited the lack of job training for lawyers in criminal law and the absence of control over court-appointed lawyers’ workloads. There also should be parity between defense law-yers and prosecutors with respect to resources so that lawyers representing indigent defendants are equal partners in the justice system, according to the ABA.

If implemented, the Indigent Legal Services Commission’s recommendations would address all those issues including training for new lawyers and continuing education for seasoned ones.

“Criminal defense lawyers have always trained themselves, partly through our organization,” Peter Rodway, a Portland lawyer who is president of the Maine Association of Criminal Defense Lawyers, said Thursday, “and through the huge amount of informal but effective mentoring that goes on among lawyers in firms and in courtrooms.”

Rodway said that he supported the Indigent Legal Services Commission’s recommendations as long as the new commission is fully funded and “its rules don’t include anything that impedes a lawyer’s ability to make a living.”

“Overall, it’s good for lawyers and it’s good for the defense bar,” he said of the report.

The Indigent Legal Services Commission recommended the creation of an independent entity to:

— Oversee selection and payment of constitutionally required counsel and eliminate the inherent inequity and appearance of the conflict of interest in the current system.

— Alleviate the negative impact on the judicial branch’s budget and the judicial system as a whole caused by the higher-than-expected costs for constitutionally required counsel.

— Implement uniform statewide standards for the selection, training and performance review of appointed counsel, while providing supervision and management to ensure that quality representation is uniformly provided in the most efficient manner possible.

Source: Independent Legal Services Commission.

http://bangordailynews.com/2009/03/05/politics/report-commission-needed-to-direct-indigent-legal-defense/ printed on September 19, 2014