LePage wants to modify legal service for poor Mainers

Posted Sept. 01, 2015, at 5:53 p.m.

AUGUSTA, Maine — If you commit a crime in Maine and don’t have money to pay for an attorney, the state will cover the cost. But unlike many other states, which use public defenders, Maine assigns indigent cases to private practice attorneys and pays them an hourly rate.

Gov. Paul LePage has proposed a change: He’s introduced a bill that would create a new type of public defender system in Maine that he believes would do a better job and save taxpayer money.

The governor’s bill would set up a new system that would contract with lawyers around Maine to provide indigent legal services, possibly as their full-time job, but not as employees of the state. The bill was drafted by the Office of Policy and Management at the governor’s request.

“The governor has often said if you can find it in the Yellow Pages, you probably don’t need the government doing it,” said Jonathan LaBonte, director of the Office of Policy and Management. “In the case of defense attorneys, there are places in the Yellow Pages, so why not look at a system where the state can provide a contract model to do that?”

The proposal would create one new government position within the Indigent Legal Services Commission. That person — the public defender — would coordinate contracts with attorneys across the state to represent poor Mainers facing possible time in jail.

Sen. David Burns, a Republican from Whiting and co-chairman of the Judiciary Committee, is sponsoring the bill.

“We are the only state that isn’t looking at, or doing, something like this, so maybe it is time to re-evaluate,” Burns said. “If we do the same job or better for less money, we should consider it.”

The House co-chairman of the panel, Democrat Barry Hobbins of Saco, said it may be time to take a new approach. But Hobbins, who is an attorney, said he does not want to see the creation of a large bureaucracy of full-time public defenders that would likely be more expensive than the current system.

“You can do a creative hybrid system where you don’t just hire public defenders,” Hobbins said. “We have a successful program in Somerset County where a group of lawyers contracted with the state. I think that is the approach to take.”

The Somerset County contract arrangement involves three attorneys, which allows some flexibility when conflicts arise. Phil Mohlar is one of the attorneys holding the Somerset County contract. He said so far it has worked pretty well.

“Each attorney keeps their own database, and when cases get assigned, we need to make sure we do not have conflicts,” Mohlar said. “And, frankly, sometimes there are, and that requires one of the other attorneys to take over that case. Very rarely do we end up in a situation where all three attorneys that are in the contract are conflicted out.”

When that happens, the Indigent Legal Services Commission assigns the case to another attorney in the area. Mohlar said any new system should maintain that flexibly and also take into account the special circumstances of homicide cases, which are extraordinarily expensive.

Meaghan Maloney, district attorney for Kennebec and Somerset counties, believes the Somerset model could work in most parts of the state.

“We have to have the best possible defense for every indigent defendant in order for our system of justice to work, so we have to carefully evaluate this and make sure we are picking the best model,” he said.

The Somerset County model has won high marks from defense lawyers and prosecutors, and the cost and complexity of legal defense are increasing, said Robert Ruffner, a defense attorney and director of the Portland-based Maine Indigent Defense Center.

“A case that would have been just reading a police report five years ago now involves watching or listening to an hour or two of audio and/or video tape,” he said. “And those are things that will affect, no matter how you structure the delivery, how long it takes to adequately represent someone.”

The Maine Indigent Defense Center and the University of Maine School of Law are planning a forum this fall on the governor’s proposal and possible alternatives. The Legislature’s Judiciary Committee plans a public hearing on the proposal after lawmakers reconvene in January.

This article appears through a media partnership with Maine Public Broadcasting Network.

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