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New lawsuit alleges the state provides inadequate representation for low-income Maine defendants

In this Monday, May 22, 2017 photo attorney Taylor Sampson addresses the judge while defending indigent citizens at Cumberland County Superior Court in Portland, Maine. Maine is the only state in the nation without a public defender's office.
Robert F. Bukaty
AP file
In this Monday, May 22, 2017 photo attorney Taylor Sampson addresses the judge while defending indigent citizens at Cumberland County Superior Court in Portland, Maine. Maine is the only state in the nation without a public defender's office.

The ACLU of Maine filed a lawsuit on Tuesday against the state agency that oversees court-appointed attorneys for low-income defendants. It claims that the lawyers aren't meeting the constitutional requirement for an adequate defense and are not sufficiently supervised.

The lawsuit comes amid stalled efforts to create a hybrid public defenders office and increased calls for additional funding. It was filed in Kennebec County Superior Court on behalf of five low-income defendants who remain incarcerated as they await trial on different criminal charges.

Their overriding complaint is that their court-appointed attorneys are not communicating with them and are poorly supervised.

The allegations are folded into broader allegations by the ACLU that the Maine Commission on Indigent Legal Services has violated state and federal constitutional requirements by not enforcing standards for attorneys who are contracted by the state, or properly training or supervising them.

Zach Heiden, an attorney for the ACLU of Maine, said this failure has effectively created two justice systems: one for the wealthy and one for the poor.

"The state has to do more than simply appoint a lawyer," he said. "They have to make sure that lawyer is trained, supervised, evaluated, compensated, so that they're able to provided meaningful counsel and advocacy."

The ACLU's lawsuit has loomed for several years and its prospects intensified in 2019 after the Sixth Amendment Center issued a report that found a host of problems with Maine's legal defense system for the poor, including training and supervision of court-appointed lawyers.

Maine is the only state that relies exclusively on private attorneys to provide legal services for low-income defendants. And that's led some, including Heiden and the ACLU, to call for the creation of a public defender's office.

"There's no way to meaningfully supervise those lawyers, to evaluate their performance, to get them the training that they may need, to get them the support that they may need to do their jobs," Heiden said.

Justin Andrus, director of the Maine Commission on Indigent Legal Services, is well acquainted with those criticisms.

"It is certainly the case that things have improved and certainly the case that things can improve further," Andrus said.

Andrus became the director of the commission after his predecessor, John Pelletier, resigned in 2020 amid fallout from the Sixth Amendment Center report and increased scrutiny of his management of the agency.

When reached Tuesday, Andrus said he had not yet seen the ACLU complaint and could not comment on it. But the issues behind the lawsuit have been documented for years, and Andrus said his office has been working to address them.

"From my perspective I welcome the opportunity for continued evaluation. And I welcome the opportunity for even more persuasive authority to continue the goal of achieving the funding and authority that we need to provide superlative counsel to indigent defendants," Andrus said.

But funding has been an issue.

The Legislature last year added $18.5 million to the commission's budget so that it could increase hourly rates for indigent lawyers from $60 an hour to $80 an hour. Money for other initiatives, however, remains a consistent challenge.

The commission has a limited training budget for rostered attorneys, and some experienced lawyers have bristled at Andrus' proposal for increased supervision.

"I've been my own boss now for 20 years. I don't need, want, nor will I accept the level of supervision outlined in pages 46 to 52," said attorney Jeff Davidson during the commission's public meeting on Monday, the day before the ACLU's lawsuit was filed.

Davidson was criticizing Andrus' proposal for increased supervision of appointed attorneys — a central issue in the lawsuit, which some defense attorneys say targets them as much the commission that oversees them.

"At first blush it seems as though it's defense lawyers that are going to be taking the brunt of this ideology, if you will, in this lawsuit," said Steve Schwartz, a defense attorney in Portland who founded the Maine Association of Criminal Defense Lawyers, or MACDL.

Tina Nadeau, the current director of MACDL, could not comment by deadline.

Schwartz said he finds the criticism of the current system and its contracted attorneys too sweeping and not borne out by the judges who have done postconviction reviews of cases involving indigent defendants.

"It seems to me that the judges themselves who are in this system would be those who would be saying that the system itself is actually quite adequate," he said.

Schwartz agreed that the current system could be improved, but he said he worries that proposals to preempt or respond to the ACLU lawsuit go too far and could discourage what he calls creative lawyering, and potentially depress participation in the program.

He also said he sees the lawsuit as a vehicle to force creation of a public defender system that the Legislature has not yet fully embraced and that some defense attorneys have vigorously opposed.

The Maine Commission on Indigent Legal Services has endorsed a proposal that splits the difference — a hybrid that director Andrus said is necessary to meet the needs of the state's dispersed population.

"From my perspective, given the geography of Maine and where the population densities and case densities are, ultimately it's probably some form of hybrid system that's necessary," he said.

But the commission's proposal to try out such a model has neither been implemented nor funded by the Legislature.

And funding for other initiatives, including attorney training, remains a problem.

The ACLU lawsuit might have the effect of forcing the state's hand; it's seeking class action status and a declaration by the court that state law and constitutional violations are occurring and that the commission must fix them.

The Office of Attorney General, which is defending the commission in the lawsuit, declined to comment.

Journalist Steve Mistler is Maine Public’s chief politics and government correspondent. He is based at the State House.