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Judge skeptical of agreement to drop Maine ACLU lawsuit over low-income representation

Troy R. Bennett
Michaela Murphy

A Superior Court judge expressed skepticism Wednesday over a proposed settlement between the ACLU of Maine and the state agency that oversees the legal defense of low-income criminal defendants. While Justice Michaela Murphy has not yet decided on the fate of the proposed agreement, she suggested that it fails to address the current crisis afflicting the state's indigent defense program.

The agreement would effectively freeze the ACLU's class action lawsuit against the Maine Commission on Indigent Legal Services for at least four years in exchange for a slate of reforms designed to improve the quality of the defense provided by the commission's roster of private attorneys.

But just minutes into an hourlong preliminary hearing, Justice Murphy questioned why the 17-page settlement didn't go further to address the problem she routinely views in her courtroom: An abundance of low-income defendants, a shortage of attorneys willing to represent them and overwhelmed defense lawyers who do.

Murphy, who must approve the agreement for it to take effect, wondered why the parameters she had outlined during a previous hearing weren’t addressed.

"And I think I was trying to suggest to you all that if there was going to be a settlement, it was going to have to address the looming emergency that I think everybody recognizes," Murphy said.

The emergency has been simmering for years as Maine's unique system of indigent defense has been rocked by scathing quality assessments, questionable conduct by some of its rostered attorneys and a chronic funding problem that, until recently, was largely ignored by state lawmakers.

Even now, after the Legislature increased the hourly wage for indigent attorneys, the commission's roster is, as Murphy put it Wednesday, empty.

The situation has become so desperate that last week Maine Chief Justice Valerie Stanfill made a personal appeal to high-profile law firms to have their attorneys sign up to represent low-income clients.

At one point in Wednesday’s hearing Justice Murphy grilled ACLU attorney Zachary Heiden on why plaintiffs were not seeking a finding of deprivation of counsel — a violation of the Sixth Amendment of the U.S. Constitution.

"It's a civil case," Heiden later responded. "It's a civil case seeking civil remedies, injunction relief, declaratory relief. It (the agreement) does in no way affect people's criminal remedies available."

"How do people file motions for criminal relief if they don't have an attorney?" Murphy responded.

Assistant Attorney General Sean Magenis, who is representing the state indigent defense commission, argued that the agreement is the product of good-faith negotiations and addresses concerns the ACLU brought in its lawsuit alleging the state failed to provide adequate legal representation to low-income criminal defendants.

"The point of the settlement … is not to completely fix every issue with indigent defense system," Magenis said. "That is not possible through a settlement agreement in this case. What we have done, however, is to address the structural issues. This is not a settlement which we are agreeing to issue rules and we all say it's fixed and we walk away."

Under the agreement the state agrees to expand a new public defender's office created last year to address the shortage of private attorneys willing to represent low-income clients.

It also requires the commission to seek more funding — an outcome ultimately at the discretion of the Legislature.

And it sets minimum performance standards, ordering the indigent defense commission to conduct regular evaluations of the private attorneys it hires, while also requiring the state to provide training to attorneys and create a process for handling performance complaints.

But echoing some of the criticism that has emerged from defense attorneys since the proposed settlement was announced Tuesday, Murphy worried that the new standards might further discourage defense attorneys from taking on indigent clients at a time when district attorneys are aggressively pursuing prosecutions.

Heiden suggested that some of those cases should be dismissed by judges if the state can't provide an adequate legal defense for low-income defendants.

"And that's who we are here representing, their interests," he said. "Not the interests of district attorneys to be able to prosecute as many people as they want, at any given time. Prosecutors are quite scrupulous about guarding their discretion. And they need to exercise that discretion responsibly, or else it's going to fall to the courts to exercise it for them."

Justice Murphy did agree that the attorney standards included in the agreement are necessary, but said without lawyers, "the standards don't mean anything."

"Well, the way to have lawyers is to attract more lawyers," Heiden said. "And the way to have more lawyers is to make the system more attractive. And the right time to start doing that is at least a decade ago."

Justice Murphy and Heiden agreed on that point, but it's unclear whether the judge will initiate a judicial review process necessary to ratify the settlement agreement.

Murphy indicated that she'll make a decision within a week.

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