Do plaintiffs in protection from abuse cases have an unfair advantage over defendants?

Joshua Valley spent 49 days in jail last summer for violating an order protecting his estranged wife from abuse.

Valley had sent a text message to his daughter’s iPod. His estranged wife, who had taken the daughter’s iPod, intercepted the message and called police.

Valley, who knew his wife had taken possession of the iPod, told police he was simply trying to let his daughter know that he loved her and hadn’t forgotten about her.

Like many defendants convicted of violating protection from abuse orders, or PFAs, Valley’s time in jail wasn’t triggered by an assault or even a threat.

But in the eyes of the court, if the PFA bars contact — direct or indirect — with the plaintiff, violation of that provision can result in a Class D misdemeanor, which is punishable by up to 364 days in jail. Though, in Valley’s case, even the judge was surprised by the length of time he’d been held in jail awaiting sentencing.

Valley, who also had been charged with a second violation of that order and with violating conditions of bail, is, he admits, no saint. A misspent youth landed him in jail before he moved to Maine in 2000. In a sworn affidavit for a 2004 protection order, his wife wrote that Valley had verbally and physically abused her.

But Valley’s recent story, according to defense and plaintiffs’ attorneys alike, reveals what many see as a longtime flaw in Maine’s legal system: Plaintiffs in civil PFA proceedings are often provided legal counsel; defendants are not.

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Valley, 37, stood alone the day he went to 8th District Court in Lewiston for a hearing on his wife’s application for a PFA. He couldn’t afford a lawyer.

In the courtroom, his wife was represented by a University of Maine third-year law student who was advised by a University of Maine School of Law adviser, who is also a licensed attorney in Maine. Valley’s wife also was represented by Safe Voices, a nonlegal advocacy group that provides support for victims of domestic violence in and outside of the courtroom.

Defense lawyers in the Twin Cities decry what they see as a fundamental inequity in the courtroom, one which, they argue, needs to be brought into balance.

“The nature of the process is such that it can have very serious consequences and it is unfair that one party is entitled to free legal representation and the other party that faces the consequences of a protection order is not entitled to free legal representation,” says James Howaniec, a Lewiston defense lawyer who has been practicing law locally for more than 20 years.

A protection order can affect a person’s ability to see his or her children, live at home or even carry a gun while hunting.

“It can have a significant impact on their financial circumstances,” Howaniec says.

Moreover, violation of that order can lead to criminal charges.

While the state is required to provide legal counsel to indigent defendants facing jail time for criminal conduct, no such right exists for defendants in protection from abuse court, or PA court, which is a civil — not criminal — proceeding.

Yet, the outcome of that same civil action could trigger criminal charges — if a PFA is issued, then violated — that would entitle indigent defendants to a court-appointed lawyer.

In his two decades of experience, “the vast majority” of defendants in Lewiston’s PA court are pro se, meaning they represent themselves, Howaniec says.

“That can be a recipe for disaster,” he says. “We see a lot of defendants in these cases go into trials completely unaware of the rules of evidence and the rules of civil procedure and, frankly, they end up getting taken advantage of.”

Often, those defendants will think they’re prepared, Howaniec says. They’ll have compiled exhibits and statements from police officers, teachers or counselors. But, once in the courtroom, they discover that those statements are worthless, inadmissible due to hearsay or other evidentiary objections.

“It’s a very dangerous process and a number of us have been complaining about it for years,” Howaniec says.

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While defendants generally are left to fend for themselves, the complainants seeking protection in Lewiston’s PA court are generally offered the free services of the Cumberland Legal Aid Clinic.

A program at the University of Maine School of Law, the clinic was launched in 1970. It’s aimed at training law students by providing them with real courtroom experience under the guidance of faculty supervisors, says clinic director and professor Dierdre Smith.

One of the clinic’s programs is the protection from abuse project in Lewiston’s 8th District Court, a project funded since 1999 by a grant from the U.S. Department of Justice to represent victims of domestic violence, sexual assault and stalking, who seek civil protection orders.

In most cases, plaintiffs rather than defendants in the PA court in Lewiston are identified by the students and their supervisors as domestic violence victims. In the rare cases where each of the two parties has applied for a protection order against the other, the clinic might remain neutral, unless one of the parties has previously approached Safe Voices as a victim of domestic violence. In those cases, the clinic is likely to represent that party in court.

The students generally work with the plaintiffs in the courtroom only on that day; in rare cases do they go on to represent those parties in other legal venues, Smith says.

Although Smith points to the important work performed by the students and supervisors in Lewiston’s District Court, she said it’s not an ideal situation.

In a perfect world, she says, all parties in civil court settings would be equally represented by legal counsel, not just in PA court, but others as well, including family matters and eviction proceedings.

At roughly three-quarters of the district court noncriminal proceedings, one or both parties goes unrepresented by legal counsel, Smith says.

“That, in itself, is a very troubling statistic,” she says.

“Our court systems are designed for attorneys and the vast majority of the low-income people in this state cannot afford attorneys,” she says.

She says legal aid clinics in Maine such as hers have to turn away thousands of people every year who are seeking free legal assistance in a whole range of civil cases, including parental rights, housing and divorces.

“These people are going to court on their own. It slows down the process. It makes things very challenging for the judges who do their very best to try to ensure that the proceedings are fair,” Smith says. “But the fact that there are so many low-income people in Maine who cannot afford an attorney for a whole range of proceedings, I think, is something that is a problem.”

She says there’s an ethical limit to the extent that a judge or anyone else with legal qualifications can assist an unrepresented party who’s floundering in the courtroom.

Verne Paradie, a Lewiston defense lawyer, says he spends a lot of time in PA court and sees pro se litigants struggling all the time.

He’ll spot them in the hallway during a break, walk up to them and say: “Come here for a second. You may not want to do that. I’m not going to give you legal advice because we don’t have a lawyer-client relationship, but you might want to think about what you’re doing.”

Paradie said that most of the defendants he’s observed in PA court “don’t really understand what’s going on … and they don’t really understand the repercussions.”

Not all domestic violence victims in Maine are afforded the free services of law students. Those seeking PFAs in select Maine courts are represented by various distinct nonprofit groups. In:

• York County: Caring Unlimited.

• Cumberland County: Pine Tree Legal.

• Penobscot County: Spruce Run.

But in other PA courts across Maine, indigent plaintiffs must fend for themselves just like the defendants, domestic violence advocates say.

Julie Deacon, executive director of the Maine State Bar Association, says her organization provides lawyers who work pro bono through her organization’s Volunteer Lawyers Project for clients who meet financial qualifications. Those MSBA members were recently recognized for the many hours they donate to indigent parties in Maine.

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The PA court process starts with a plaintiff who accuses a defendant of abuse or threatening abuse. That plaintiff will fill out a request for a temporary protection order, swearing an oath that the affidavit they wrote is true.

A judge will review the plaintiff’s request, then issue or deny an order on an emergency basis, sometimes after speaking with the plaintiff. A hearing for a PFA request is scheduled for a later date. At that time, the two parties will initially be given a chance to agree on the terms of an order, which court observers say happens in a majority of cases. If they can’t agree, the case will go to a hearing, where both sides will be given an opportunity to present their respective cases and a judge will issue a finding, while consulting the “abuse statute” that defines what constitutes abuse under state law.

The director of outreach at Safe Voices, who asked to be identified only as Cara, said her impression of the presence of the student lawyers in the Lewiston courtroom appears to have the effect of facilitating the court proceeding, but doesn’t necessarily skew the judges’ findings.

“We do not see that a larger majority [of plaintiffs] are getting PFAs,” in the Lewiston cases compared to other courts where indigent plaintiffs aren’t provided free legal counsel, she said. “We don’t see these huge spikes in outcome differences. What we do see is the court moving along smoothly, quickly and getting through the cases.”

The plaintiffs’ free legal representation “is not giving them this great advantage” over defendants without lawyers, she says.

In courts where there are no groups such as the law school’s clinic or other nonprofit groups to provide free legal counsel to indigent plaintiffs, Safe Voices and other domestic violence advocacy groups do their best to try to arrange for pro bono lawyers to take those cases, especially if a victim appears to be at risk of injury, Cara says.

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Lewiston defense lawyer George Hess represented Valley at his sentencing for violating the PFA by sending that text to his daughter. Hess wonders whether the federal grant that covers expenses for the student attorneys in PA court is constitutional.

Because public money is being used to represent only one party in civil litigation, he says that could bring into question possible violation of the “equal protection clause” or the “due process clause” in the U.S. Constitution.

“I don’t know if that decision by the federal government has ever been attacked in federal court,” he says. “I just don’t know … if it has, it obviously has failed.” All the same, he says, “It’s just bothersome to see public funds being used to benefit one side.”

Smith says her clinic’s project has never been challenged on those constitutional grounds nor is she aware of such a challenge to any other courthouse assistance project in Maine or nationally.

And because of the basic rules that govern attorneys, Smith said her clinic, like other courthouse assistance programs, can only represent one party in litigation.

“But that does not mean that the programs themselves should be stopped so that no one has an attorney,” she says.

“All of these programs are taking steps to decrease the number of people seeking help, such as protection from abuse, from the courts without an attorney,” she says. “It is particularly challenging for unrepresented plaintiffs, as they carry the burden of proof and must come up with evidence to prove that they are entitled to relief under the statute.”

In 8th District Court, the state pays for a so-called “lawyer of the day” to assist criminal defendants facing misdemeanor charges on pretrial issues such as rights and bail.

Hess says maybe an organization such as the Maine State Bar Association could try to cobble together something similar for civil defendants in PA court as part of its Volunteer Lawyers Project.

Howaniec says that while he thinks there might be a need to challenge the “fundamental fairness” of the federal funding, he doesn’t want to see victims of domestic violence lose their legal representation.

“On the one hand, we obviously support the government’s efforts to combat domestic violence which, it goes without saying, is a significant problem.” On the other hand, he said, “we are eroding the individual’s rights to fair trial and basic due process and there needs to be a better balance in that regard.”

An advocate for Safe Voices who, because she spends most of her time in PA court, asked not to be named for her own safety, says she thinks the perceived imbalance is just that, a perception.

“I do believe the way the system is set up now is just — it’s good,” she says. “I don’t necessarily think a lawyer of the day would make any difference.”

Students from the clinic don’t meet with clients before arriving at court, she says. “So, in a sense, there’s a level playing field … I think that most defendants do very well,” likely because they’re guided by the judges. Plaintiffs bring to court the same sorts of exhibits and witnesses that the defendants do because they haven’t been coached beforehand by legal counsel as to what to bring to court to bolster their cases.

When a separating or divorcing couple moves on from PA court to family court, the tables often are reversed, the Safe Voices advocate says. Suddenly, it’s the victim who stands alone while, in the meantime, the defendant has hired a lawyer.

Jane Morrison, executive director of Safe Voices, said she believes people appearing in court have rights and there should be equality.

“We want it to be a fair hearing, obviously, but we’re too close. We see the results” of domestic violence, she says.