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State and ACLU offer revised agreement to settle indigent case

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.

Attorneys for the state and the ACLU are proposing a new agreement aimed at ending a court case over Maine's system of providing lawyers to low-income defendants more than two months after a judge rejected an earlier settlement.

The proposal comes at a time when the state's indigent legal system continues to struggle with its obligation to supply clients with attorneys.

In a class action lawsuit filed last year, the ACLU of Maine claimed the state was violating the constitutional rights of low-income criminal defendants by failing to provide them with adequate legal representation. But rather than proceed to a lengthy and costly trial, the ACLU and Maine's Commission on Indigent Legal Services had proposed suspending the lawsuit for four years as the state implemented a series of reforms.

Superior Court Justice Michaela Murphy rejected that proposal in September, writing that the parties had "failed to demonstrate that the proposed agreement would be fair, reasonable, adequate and in the best interests" of the low-income defendants involved in the class-action lawsuit.

"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 had told attorneys on both sides about two weeks before she officially rejected the first proposed settlement.

The "looming emergency" is the fact that the Maine Commission on Indigent Legal Services doesn't have enough private attorneys or public defenders to keep pace with demand. As a result, some criminal defendants are lingering in jail for longer than they should.

On Tuesday, the parties filed a revised agreement that keeps many of the proposed reforms, such as increased training and evaluation of attorneys, while seeking to address Murphy's concerns.

The office of Maine Attorney General Aaron Frey, which represents the Commission on Indigent Legal Services, declined to comment on Tuesday because it pertains to pending litigation. But Zachary Heiden, chief counsel at the ACLU of Maine, said he believes the settlement addresses those concerns while making "meaningful changes to Maine's indigent defense system."

"So what we've tried to do in this settlement is arrange that people have an attorney provided for them at their initial appearance and would continue to be brought back before the court each week until a full-time, permanent attorney is provided so that the judge has a chance to re-assess whether that person still needs to be locked up," Heiden said. 

Heiden added that under the latest proposal, the commission agreed to provide those temporary attorneys with guidance on ways to ensure a defendant isn't held in jail for longer than necessary. Addressing another concern raised by the judge, the state has also begun tracking and reporting the number of people going without attorneys and identifying the worst trouble spots around the state.

But Heiden said the long-term solution is a network of public defenders, employed by the state, who are able to represent clients wherever and whenever they are needed. And that will take additional money from the Legislature.

"This settlement achieves some meaningful reforms but it's only one piece of the puzzle," Heiden said. "And there's still so much that needs to happen not only in the courts but in the Legislature and in the executive branch to really bring the state's criminal legal system into constitutional compliance."

Maine has begun to move in the direction of a public defender system after relying entirely for many years on private attorneys willing to represent low-income defendants. State lawmakers have authorized the Commission on Indigent Legal Services to hire more than a dozen public defenders in the past two budgets. And the commission is asking the Legislature to fund an additional six offices around the state in the coming years.

Lawmakers also more than doubled the hourly rate paid to participating private attorneys in hopes of luring more back into the system. But during a meeting on Monday, commissioners were told only 58 attorneys were on the list of lawyers willing to take on new cases.

"For a state this size with as many people as we have, that's a huge problem," said Roger Katz, an attorney and commission member who formerly chaired the Legislature's budget-writing committee. "I was one of those people who thought that once we raised the hourly rate that that problem would largely dissipate and it didn't, even though we now have a very fair hourly rate."

Katz said many lawyers are hesitant to join the commission's roster because they fear being deluged with cases. And because fewer attorneys are volunteering to take new cases, some judges have begun tapping attorneys who are not on the commission's list to represent indigent clients.

And that has created tensions within the system. As director Jim Billings said during Monday's meeting, it is the commission's job to set the minimum standards for participating attorneys.

"My concern is if we send any signal to the judicial branch that encourages further rogue appointments -- and that's what they are," Billings said. "We, under statute in the state of Maine, say who is eligible to take a case — not the judicial branch. That went away in 2010, almost 15 years ago. So all of these appointments are rogue appointments."

All of these factors could be under a spotlight when lawyers for the commission and the ACLU meet with Justice Murphy in the coming weeks to review the proposed settlement agreement. If it is rejected again, the case could go to trial next year.