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Commissioner warns Maine’s indigent legal system has ‘gone over a cliff’

In this Wednesday, May 31, 2017, file photo, a court-appointed "lawyer of the day" explains a legal implication to a person charged with a crime at Cumberland County Superior Court in Portland, Maine.
Robert F. Bukaty
AP file
In this Wednesday, May 31, 2017, file photo, a court-appointed "lawyer of the day" explains a legal implication to a person charged with a crime at Cumberland County Superior Court in Portland, Maine.

Commissioners and staff on a state panel expressed concerns Tuesday that Maine is failing to provide legal counsel to low-income defendants as demand for court-appointed attorneys coincides with a drop in lawyers willing to do the work.

"People are sitting in jail without lawyers. That's an actual denial of counsel – that's not a theoretical denial of counsel,” said Ronald Schneider, an attorney who serves on the Maine Commission on Indigent Legal Services.

Schneider raised the concerns during a commission meeting that came just two days before a court hears arguments about whether Maine is failing to fulfill its constitutional obligation to ensure all defendants have access to legal counsel. The commission is charged with making sure that people who cannot afford a lawyer can get one free of charge to them. And Schneider was reacting to the fact that 18 defendants in Aroostook County went more than 1,200 days combined without legal counsel.

"We've already gone over a cliff in my opinion,” Schneider said. “We're not going over a cliff, we've gone over a cliff because we have actual denial of counsel and caseloads that are a real problem."

Maine is the only state in the nation that does not have a public defender's office to provide legal representation to low-income defendants. Instead, it relies on hundreds of private attorneys across the state who provide their services and are compensated by the commission. But as commission executive director Justin Andrus explained at the beginning of Tuesday's meeting, the system is losing lawyers at a time when the demand for court-appointed attorneys is rising dramatically.

In May of 2019, there were 410 attorneys statewide willing to take on cases from the commission. But three years later that number has fallen to just 236 attorneys – a 42 percent reduction. At the same time, the number of cases is up 12 percent.

"We can't do it with 236 attorneys,” Andrus said. “You know that, but I want to continue to say that out loud."

Andrus said the commission currently has no “active" attorneys in Washington County who are willing to take on cases. Instead, all current cases are being covered by lawyers from other parts of Maine who are traveling Down East to represent clients.

But it was the situation in Aroostook County that drew the biggest response from commissioners. Andrus alerted commissioners to the situation in Aroostook last month. A subsequent review revealed the 18 clients who has collectively waited more than 1,200 days without an attorney. It was unclear how many of them were held in jail as they waited. But Andrus said it was a major problem that commission staff did learn about the lack of attorneys for some time and that Maine lacks an integrated system that would flag such issues.

"What it reveals is that structurally our program doesn't work right – a because we didn't know and we should have known,” Andrus said.

These overarching issues will be the focus of a hearing in Kennebec County Superior Court on Thursday. The ACLU of Maine filed suit against the commission in March, arguing that Maine is failing to provide adequate legal representation to low-income clients. Maine is obligated to provide that representation under both the state and federal constitutions, and the ACLU's class action lawsuit claims the state is failing it low-income defendants on multiple fronts.

The state of Maine is seeking to dismiss the lawsuit. But as Schneider noted during Tuesday's meeting, it is the state, not the commission, that is arguing in court that there is no problem in Maine.

Meanwhile, former commissioner Robert Cummins called on the panel to be more forceful in demanding better funding and improvements to the system. Cummins resigned from the commission earlier this year over the state’s lack of progress on addressing the issues.

“Please call to account the people who are responsible for putting this system behind the eight ball,” Cummins said. “And if you don’t do it, if you don’t do it, then ask yourselves if you are fulfilling your oath.”

Earlier this spring, the Maine Legislature earmarked $1.2 million to create a small public defender's office staffed by five full-time attorneys to represent low-income clients. That program will take time to set up, however.