December 04, 2019
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Maine eyes switch to indigent legal services after ACLU calls system unconstitutional

Troy R. Bennett | BDN
Troy R. Bennett | BDN
Cumberland County Courthouse

AUGUSTA, Maine — Overseers of Maine’s unique system of defending indigent people accused of crimes floated the idea on Tuesday of transitioning to a public defender’s office after the American Civil Liberties Union of Maine called the current system unconstitutional.

The hearing of the Maine Commission of Indigent Legal Services came months after a critical report from the Sixth Amendment Center that found the state’s indigent defense system lacks safeguards ensuring financial oversight and quality. It prompted an ongoing investigation into the system by the Legislature’s watchdog agency.

Maine is the only state without a public defender’s office, according to Reuters. Its current system uses a roster of attorneys who agree to take cases — typically at a state-set rate — that has been in place since 2009. It has faced financial problems virtually since its inception and attempts to change it to a contracted system failed under former Republican Gov. Paul LePage.

Legal experts who attended a Tuesday public hearing on the issue said moving toward a more traditional public defender’s office could provide more oversight and create a cohesive culture around public defense.

Josh Tardy, a lobbyist who chairs the commission, said the body needs to respond to issues the report highlighted and suggested that might require moving to a new system, though he acknowledged it could face political opposition and “ultimately it’s the Legislature’s call.”

Sen. Michael Carpenter, D-Houlton, a former attorney general, said he has “always had some interest” in a traditional public defender’s system, but the problem has always been how to convince lawmakers how to adequately fund it.

“Candidly, probably not a lot of people on a normal legislative day give a lot of thought to the quality of representation,” he said.

Others cautioned switching the system alone would not guarantee better service unless attorneys were given enough resources and balanced caseloads. David Flanagan, a former assistant attorney general, said the current system motivates attorneys to provide better services, saying a lawyer’s commitment “lessens” if working on a fixed-fee basis.

The Sixth Amendment Center said gaps in oversight have led to potential overbilling, inadequate performance by some attorneys and potential conflicts of interest in assigning attorneys and financial screening of clients. It recommended raising the hourly fee from $60 to $100 and paying more for murder and other cases.

Those deficiencies meant poor clients were often not getting adequate representation, the report found. Participants in the study said some assigned attorneys wouldn’t visit their clients in jail and would withdraw from cases or take reduced roles if cases went to trial.

Alison Beyea, executive director of the American Civil Liberties Union of Maine, said the organization is prepared to sue the state if the situation is not remedied.

“In no other area of government would we think it appropriate to outsource a critical public function to private contractors with no supervision or accountability,” she said.

Speakers also criticized the commission’s lawyer-of-the-day program, in which attorneys can appear at 48-hour hearings for in-custody defendants and at initial appearances for out-of-custody defendants, as making it impossible to provide sufficient counsel. The center’s report found lawyers in Somerset County could reject a defendant for appointed counsel, then take his or her case privately.

The situation can be particularly challenging for the immigrant population, said Mufalo Chitam, executive director of the Maine Immigrant Rights Coalition. She said lawyers of the day rarely establish relationships needed to understand a client’s backgrounds or breach language barriers to give effective counsel. She said attorneys have, at times, told clients to plead guilty to charges they did not understand.

“Their lawyers don’t know how to safeguard their rights,” she said.

 



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