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Study Finds Maine Isn't Providing Adequate Legal Representation For Accused

Maine District Court - Portland

Members of the legislature’s Judiciary Committee got a sobering briefing on a study Thursday that the legislature commissioned on the adequacy of the way Maine provides those charged with crimes that could put them in jail with the legal representation they are guaranteed by the Constitution. The 118-page study concludes Maine is not meeting its obligations. Maine Public’s senior political reporter, Mal Leary, has been following the issue for years. He joined Nora Flaherty on All things Considered.

Flaherty: Mal, it sounds like this report has some pretty bad news for lawmakers.

Leary: It sure does, Nora. Maine is the only state that still uses just private lawyers to provide legal representation to poor people that can't afford to pay for their own lawyer. That's when they could face jail time. That's what the Constitution provides.

Traditionally when a judge is found a person could not pay for their attorney they would name a lawyer, often at random, from the area to defend that person. But about a decade ago the court system started advocating for a change, saying having the judges run the whole process - that means authorizing payments, finding that the person deserves payments for a particular defense lawyer - created too many conflicts for the judges. That led to the creation of what's called the Maine Indigent Legal Services Commission. It oversees the process, it handles the payments.

But this study by the nonprofit Sixth Amendment Center, that was commissioned by the legislature, says the Commission has its own problems so serious that the center's study warns the state could be sued for not meeting its constitutional responsibility to provide adequate representation.

So that's pretty serious. Does the study lay out the shortcomings of the current system?

It certainly does. It says qualifications, for example, to get assigned as a defense counsel are too lenient. Some defendants may not be getting the representation they deserve just because of that. It also says the Commission uses its financial screeners in a way that creates a conflict, as does its 'lawyer for a day' program. The report also points to some lawyers billing and being paid hundreds of thousands of dollars when the pay rate is supposed to be $60 an hour. The center says such bills are not being reviewed adequately by the Commission. The report also cites high caseloads for some court-appointed defense counsels as a way the defendant may not be getting adequate representation.

OK lots of problems. Does it offer some solutions for lawmakers to think about?

It does. It recommends more training for lawyers that participate in the system, and it urges higher per hourly pay. They're talking about a hundred dollars $100 an hour instead of 60. That would attract more experienced defense attorneys to participate in the system.

It wants the Commission to have more staff to make sure money is being spent appropriately, and it wants the state to consider moving to a public defender system - that is lawyers hired and paid for by the state starting with Cumberland County. They argue it would be more efficient with the large number of cases in the county to operate that area. They say other parts of the state will continue with the prison system with greater oversight.

Is there a price tag on all this? Is this actually doable or is this kind of pie in the sky?

Well the price tag is yet to be determined, as they say. It certainly is in the millions of dollars. When you talk about moving $60 an hour to $100, that's a lot of money, even if you try to factor in the savings from going to lawyers that are paid for directly by the government down in Cumberland County. And you know as one member of the Judiciary Committee put it during their discussions today, this could well be a case of 'pay me now or pay me more later.' We're talking about a right that we all have under the Constitution. The state is responsible for providing the poor with legal representation. If we don't, a lawsuit is likely, and a lot of folks feel it's likely to prevail. Another Committee member pointed to the high consent decree, that's the one from 1990 that still governs the way the state provides mental health services. And they say you look at that, and that's what taxpayers could be facing if the matter is settled in court.