In Defense Of The Defendants

Nov 29, 2019

Plea deals handed out and negotiated before defendants meet with the state’s free ‘Lawyer of the Day’ have Maine defense attorneys calling a constitutional foul.

Harold Mortimer
Credit Pine Tree Watch

Harold Mortimer stood in front of Judge Valerie Stanfill, accused of driving under the influence of alcohol for the second time in 2019. He met the lawyer standing beside him that morning and their conversation was brief: plead not guilty and get an attorney.

Randy Robinson, a criminal defense lawyer in Augusta, was the Lawyer of the Day and responsible for advising more than 30 defendants in the Waterville District Court on Tuesday, Sept. 3. When Mortimer was called to the bench, Robinson leaned toward him and repeated his advice: plead not guilty.

“He was just kind of quick to push on. He didn’t give you a lot of information,” Mortimer said in the courthouse parking lot, after pleading guilty to driving under the influence and operating a vehicle with a suspended license.

Mortimer, 22, lit a cigarette and leaned on his white Silverado while his girlfriend at the time, Kaylee Mills, sat in the driver’s seat. After his first operating under the influence (OUI) conviction in June, Mortimer’s license was suspended for 150 days. This time, it would be three years.

Like many working Maine residents who are charged with a lower-level criminal offense, Mortimer was ineligible for a court-appointed attorney to fight his case because he had more than $1,000 of cash assets. But paying $5,000 to hire a private lawyer to take his case felt excessive, he said.

Against the advisement of Robinson and the judge, Mortimer waived his right to counsel and accepted Assistant District Attorney Shannon Flaherty’s plea offer. Ultimately, everyone in court is an adult and can make their own decision, Robinson said.

Mortimer handed in his license, made the first payment on a $1,660 court fine and on Oct. 4, he turned himself in to Kennebec County Jail to serve the mandatory minimum seven days for a second OUI offense. He was released after five days for good behavior.

“It’s quite a bit of money, but when you make stupid decisions you have to pay,” Mortimer said.

Defense attorneys and advocates who work with individuals charged with crimes in Maine are warning that people are not being adequately informed of all the consequences of pleading guilty by attorneys serving as the lawyer of the day. The social costs of pleading guilty can be high and have a lasting effect on a person’s eligibility for public housing, student loans, adoption and immigration.

The problem is compounded by prosecutors negotiating plea deals with people without a defense lawyer present and before they have waived their right to an attorney. This potential breakdown in Maine’s judicial process has many questioning if the state’s public defense system violates the Constitution.

The Sixth Amendment Center, a nonprofit that monitors whether states provide a ‘fair day’ in court for people who cannot afford to hire a lawyer, spent six months in Maine courthouses studying how the Maine Commission on Indigent Legal Services provides counsel to the state’s poor.

The center documented in 10 courts across five Maine counties that the system, as it is designed, denies defendants counsel during critical stages of a case — particularly during arraignment when they are represented by the state’s Lawyer of the Day.

It is a symptom borne out of a system with limited direct oversight or supervision in the last decade by the Maine Commission on Indigent Legal Services, said David Carroll, executive director of the Sixth Amendment Center.

“This isn’t a conscious effort to deprive poor people efficient right to counsel. It’s just the way the system has evolved, or failed to evolve, due to a lack of oversight,” Carroll said.

Due to the report and increasing scrutiny of attorney billing oversight, lawmakers and legal advocates are asking whether Maine can reform its existing defense system or if it needs to establish a state public defender office.

Courting a circus

There is no standardization for how the Lawyer of the Day program is run across Maine.

Sarah Churchill, a litigation attorney recently appointed as a commissioner to the Maine Commission on Indigent Legal Services, said she witnessed a “circus” at Biddeford District Court.

“It was a busy day, there were about a 100 cases on (the docket) for arraignment that morning, we had three lawyers of the day. And I will give them credit because they were the only people there who had started working by 8:30,” Churchill recalled.

Still, she observed glaring inefficiencies. The attorneys serving as lawyer of the day did not have a standardized speech to guide defendants on how the day would go or a checklist to ensure the system was consistent between courthouses. The courts did not ensure that clients who required translation services were seated with interpreters before a video describing defendants’ rights was played, Churchill said.

Churchill also observed that lawyers with the District Attorney’s office arrived late and the crowd spoke over the financial screener as she tried to give instructions on how to apply for a state-paid lawyer.

“Nobody in that courtroom would have thought that that was a serious process,” Churchill said.

Pine Tree Watch observed criminal arraignments in Waterville, Portland and Augusta this fall and witnessed similar confusion among defendants as assistant district attorneys handed out plea offers before the lawyer of the day arrived, resulting in a wave of people seeking legal advice in the minutes before court began.

The ACLU of Maine announced last week that it would sue the state for operating an unconstitutional defense system unless it makes improvements.

Maine is the only state that does not employ any of its own public defenders. It instead relies on private attorneys to apply to represent people who cannot afford to hire their own lawyer. The Maine Commission on Indigent Legal Services was formed in 2009 to take over the management of private attorneys from the judicial branch.
 

Zachary Heiden
Credit Pine Tree Watch

By law, the commission was required to set minimum experience, training and qualifications for court-appointed attorneys and then continuously supervise and evaluate them. However, in the decade since the commission was formed, it has not evaluated attorneys, said Zachary Heiden, legal director of the ACLU of Maine.

“Ten years ago, we envisioned the creation of MCILS as an important first step in reforming Maine indigent legal defense. Ten years later, we’re disappointed we’re still on that first step,” Heiden said.

Concerned with oversight, state lawmakers redesigned the commission in 2018 and Gov. Janet Mills (D) appointed eight new commissioners, including Churchill, to the board earlier this year.

Sen. Lisa Keim (R-Oxford), who led a legislative review of the commission in 2017 and pressed for an independent investigation of its finances earlier this year, said the executive director is responsible for overseeing the system, and it’s the commission’s responsibility to manage the executive director and ask him the appropriate questions.
 

Tardy
Credit Pine Tree Watch

The commissioners identified standards and training for court-appointed attorneys as an early focus of the new commission, said Chairman Josh Tardy, an attorney and lobbyist.

“The commission needs to address more robust training and making sure continuing legal education systems are in place,” Tardy said. “It sounds like we do need to have a system in place to hold attorneys who aren’t performing to practice standards, accountable.”

The commission’s standard for the practice and evaluation of court-appointed attorneys went into effect in February 2012, but Executive Director John Pelletier — who has led the four-person staff since 2010 —  said his office lacks the staff capacity to evaluate attorneys.

Pelletier estimated that he observed court only two times in the last five years. He and Deputy Director Ellie Maciag, who are both attorneys, do not watch criminal arraignments, Pelletier said.

“We’re not in charge of the court scheduling, but we understand that people are concerned with the lawyer of the day and that’s something Ellie and I are going to work on,” Pelletier said.

The lack of direct supervision and enforcement of attorney standards by the commission’s leadership in the past decade is a problem because people’s constitutional rights may be being denied, said Tina Nadeau, executive director of the Maine Association of Criminal Defense Attorneys.
 

Tina Nadeau
Credit Maine Public

“The Lawyer of the Day program almost everywhere is horrifying for walk-ins,” Nadeau said.

“People are relinquishing constitutional rights that they don’t even know they have. And you might get lucky — have an attorney who really steps up, puts in the work and reads discovery the day before and is able to advise people appropriately — but it’s a nightmare,” she said.

A Low Bar For Defense

The Sixth Amendment Center observed courts in Androscoggin, Aroostook, Cumberland, Somerset and York counties between August 2018 and January 2019. Representatives of the center reported that many courts take the position that defendants are not entitled to a court-appointed lawyer if the prosecutor is not seeking jail time, and as a result, poor defendants in Maine, who are told they are not entitled to a lawyer, “frequently give up and plead guilty because they cannot afford to hire an attorney.”

The U.S. Supreme Court has ruled that everyone has the right to counsel when there is the potential for jail, even if it’s a remote possibility, according to the report.

In a busy courtroom, where the attorney serving as lawyer of the day may have 40 clients in a day, even taking 15 minutes with each defendant could take 10 hours, Carroll said.
“So the lawyer starts triaging. Speaking to their client as they’re walking to the podium,” Carroll said.

Pine Tree Watch observed that the lawyer of the day is often pulled between providing legal advice to any criminal or civil defendant who requests it, and representing defendants to the judge. At the end of arraignment, when the most serious cases are entering pleas, defendants struggle to keep the lawyer of the day in the courtroom to speak on their behalf.

Robinson defended the Lawyer of the Day program saying the attorneys provide competent and free legal counsel to all defendants who want it. Defendants may only get limited time with an attorney, but some time is better than none, he said.

Part of the problem with Maine’s defense system stems from low training requirements, according to Nadeau. Attorneys only need eight continuing education credits a year to remain eligible to accept cases, and the commission regularly offers only video replays of previous live training sessions.

“To represent people for most crimes, except for serious violent felonies and a few others, you need a bar card — you need to have passed the bar and be admitted to the (Maine State) Bar (Association) — and you need to go to minimum standards training. And when they say minimum, that’s exactly what you get. You get the bare minimum,” Nadeau said.

Attorneys have to pay for continuing education training and are not reimbursed by the commission. This puts the defense at a disadvantage to the prosecution, Nadeau said. Maine’s flat rate of $60-an-hour for court-appointed cases already does not cover the cost of overhead, which has kept her from hiring a paralegal or secretary to support her practice.

“We cannot retain and attract the best and most highly qualified people because we don’t pay enough. When people are strapped for cash that has a lot of negative consequences,” from healthcare to rent, Nadeau said.

The stakes for in-custody cases are even higher, because a person has already been detained. However, some attorneys serving as the in-custody lawyer of the day were criticized by defendant advocates for not vigorously fighting for defendants to be released on bail at their initial appearance.

There is no specialized training for attorneys to serve as an in-custody lawyer of the day. In Nadeau’s opinion, only attorneys approved to take serious violent felony cases should be allowed to do in-custody days.

“Maine is not doing enough to make sure the lawyers assigned to represent people are qualified, are trained well enough or are performing the job in an adequate way,” Heiden said.

Seeking The 'Best Deal'

In a system chronically lacking oversight from the state, a potential constitutional violation has blossomed in Maine as prosecutors regularly negotiate fines and jail time with defendants in exchange for a guilty plea — without a lawyer present.

Nationally, it is estimated that 90 to 95 percent of state and federal cases are resolved before trial through a plea bargain.

“Plea bargaining is the criminal justice system,” said Thea Johnson, a former New York City public defender who is now an associate professor of law at the University of Maine School of Law.

Johnson has published academic articles on how plea bargains have evolved over time, and how the public’s perception of them have also changed.

It’s a valid critique of multiple states to ask whether an attorney has enough time to fully inform defendants of their rights and consequences before accepting a plea deal, she said. Maine has a specific problem with prosecutors speaking with defendants before they have knowingly and willingly given up their right to an attorney.
 

Meaghan Maloney
Credit Pine Tree Watch

Maeghan Maloney, the district attorney for Kennebec and Somerset counties, said prosecutors were discussing plea deals with two groups of people who didn’t have lawyers: defendants who weren’t facing jail time — who would not qualify for a court-appointed attorney anyway — and people who are facing a possible jail sentence but have declined to hire their own attorney.

“We do clarify that we’re not their attorney, we’re not representing them, we’re not looking out for their best interests. We’re looking out for the best interest of the state. But because they chose not to have an attorney, we are authorized to give them an offer and to have that communication with them,” Maloney said.

The prosecution and defense in the Midcoast counties of Sagadahoc, Lincoln, Knox and Waldo have had a longstanding agreement that all defendants should speak to the lawyer of the day before talking to the prosecution, said District Attorney Natasha Irving.
 
Since taking office this year, Irving has declined to charge people for low-level criminal offenses — reducing charges overall by approximately 23 percent — and classified all defendants offered a deferred disposition as having a risk of jail so that they can qualify for a court-appointed attorney before accepting a deal.

“We would much rather have people represented by counsel,” said Irving, who worked as a defense attorney for four years and served as the lawyer of the day at least once a month.

Seven months ago, the Sixth Amendment Center recommended that the state should bar communication between prosecutors and unrepresented defendants until after they have been informed of their rights and knowingly waived those rights. Instead, potential constitutional violations still occur each day in courthouses across Maine.

“For a lot of reasons, it’s incredibly problematic that defendants are meeting with prosecutors without attorneys,” Johnson said.

Johnson agreed with the Sixth Amendment Center’s conclusions that prosecutors speaking with defendants before they waived their right to an attorney likely violates the Constitution.
 

Natasha Irving
Credit Pine Tree Watch

If people waive their right to an attorney in front of a judge, then Irving said she does not think it’s a constitutional violation for prosecutors to try to negotiate a plea deal.

Prosecutors cross the line when they actively engage in negotiations directly with people who have not waived their right to counsel, Nadeau said. For a waiver to be valid, it has to be knowingly, intelligently and voluntarily made.

“It’s an ethical violation of prosecutors, but it’s also a systemic flaw that judges are not enforcing this. They’re not telling people, ‘Unless you’re waiving completely your right to an attorney, do not speak to the prosecutor. Speak to defense counsel,’” Nadeau said.

Jonathan Sahrbeck, who was elected district attorney of Cumberland County in 2018, said prosecutors in Maine were committed the Constitution and the rules of criminal procedure. Prosecutors are clear about their role whenever they speak to defendants to ensure they understand their rights, even if they do not qualify for a court-appointed lawyer or hire one of their own, he said.  

“Prosecutors are very aware of the important responsibility that we have, and the role that we play in striving for justice and being fair to all people who are involved in the criminal justice system,” Sahrbeck said in a written statement.

Commissioner Robert Lebrasseur, who works as a defense attorney on court-appointed cases, questioned whether the state should add a rule that would require a defendant to waive their right to counsel on the record before prosecutors speak with them. Maloney responded that she agreed that having a clear rule — one that drew a “bright line” for prosecutors — was best.
 

Pelletier
Credit Pine Tree Watch

However, Pelletier told Pine Tree Watch that he was unsure it was appropriate for the commission to instruct judges and prosecutors not to hand out discovery and plea deals to uncounseled defendants.

Pine Tree Watch observed assistant district attorneys discussing cases and providing plea offers to defendants without a defense lawyer present. The prosecutor was often the first person defendants interacted with at court and would hand out plea offers before the attorney working as the lawyer of the day arrived. This set off a flood of questions from defendants, who sometimes revealed evidence to prosecutors that could harm their case.

There are a lot of coercive techniques used early in a case and even innocent people may assume that everything will go “downhill” if they don’t accept a deal, Johnson said.

“If the prosecutor says, ‘This is the best deal you’re going to get,’ you have no way to assess that,” Johnson said.

Irving said she would treat it as a serious matter if she found out any of her prosecutors were speaking with defendants before they had waived their rights on the record or were pushing people to accept plea deals. A larger problem the state  needs to confront, Irving added, is a lack of trust in the court-appointed attorney system.

Irving has witnessed — as a defense attorney and prosecutor — poor defendants decline court-appointed attorneys because they believed the lawyer was working for the state or that they wouldn’t work as hard as a hired an attorney. However, the same defendants often could not afford the $5,000 to $8,000 retainer to hire a lawyer.

“Folks need to believe they’re getting quality representation,” Irving said.

The number of guilty pleas entered without a proper investigation is evidence that the Lawyer of the Day program is ineffective, said Lenny Sharon, a criminal defense lawyer since 1970.

Sharon will occasionally represent Maine’s indigent defendants in high-level criminal cases at the request of a judge. However, he is not rostered to accept court-appointed cases and he does not work as Lawyer of the Day.

The lawyer of the day doesn’t have time to evaluate credibility issues with the witnesses or whether there’s been an illegal search and seizure. The attorney receives the discovery, reads the state’s best case and then doesn’t look beyond it, Sharon said.

“The criminal justice system thrives on moving as many cases as possible. You find that is the bellwether for success in the court system, at least according to the judges,” Sharon said.

Institutional Stability

Private defense attorneys in Maine are increasingly saying that it is not their job to secure pleas and move the court docket. They are asking whether a state public defender office could better set institutional controls to ensure proper representation. The possibility of Maine adding a public defender office is now being considered by the commissioners and state lawmakers.

Having a public defender office provides institutional stability to a case, said Johnson based on her experience as a public defender in New York.

The public defender stays with a case from its initial appearance through completion, and if the attorney leaves or takes a vacation, the case can be smoothly handed off to another defense attorney within the same office, she said.

Pelletier defended Maine’s unique defense system for serving the poor, saying it replicates the relationship clients, who hired their own lawyer, would have with an attorney. He also questioned how much funding, resources and caseloads the state would commit to a public defender office.

For the rural areas of Maine, creating a centralized public defender system could further limit defendants’ access to attorneys by adding additional travel time, Irving said.
 
Maine has struggled to establish a state agency that sees itself as the defense entity of the state, said Robert Ruffner, a criminal defense attorney.

Ruffner served on the Clifford Commission that envisioned the Maine Commission on Indigent Legal Services back in the 2000s, and he pushed to establish a Lawyer of the Day program in every Maine courthouse. He has remained a vocal critic of the system he helped shape.

“I think there needs to be an entity that views itself as the defense entity for Maine and then change would flow from that,” Ruffner said.

The system, as it’s designed, leaves defendants vulnerable to accepting pleas they do not understand, and court-appointed attorneys in the dark about what occured at arraignment while their client was represented by the lawyer of the day, he said.

Immigrants are particularly vulnerable to ineffective legal advice in court. Barbara Taylor has practiced immigration law for 14 years and each year she buys a new 2,000-page book that details all the current immigration consequences.

The commission contracts Taylor to advise court-appointed attorneys on the effect of plea bargains on a client’s immigration status. Taylor said via email that  “very few” of the attorneys working as lawyers of the day contact her for advice on cases.

She knows cases are not reaching her, but she doesn’t know how many. The risk is that bad legal advice can put non-citizens on a path to deportation.

“A plea that is safe for one person and one status can get a person in a different status deported,” Taylor said.

The Lawyer of Day program also falls short of the American Bar Association’s best principles for public defense, which says that the same lawyer should represent a client throughout the case.
Elizabeth Simoni has been executive director of Maine Pretrial Services since 1996. The nonprofit started in the 1970s as a bail-alternative project and now serves most Maine counties as a monitored release program for first- and second-time non-violent offenders as an alternative to jail.

A survey of 21 members of her 50-person staff, who meet with clients on a weekly basis, found that defendants regularly cannot contact their assigned attorneys after they have worked with the lawyer of the day. Simoni said part of the nonprofit’s job has become managing a defendant’s anxiety when they haven’t spoken to or cannot get their attorney to answer their phone.

It used to be an unofficial rule that the attorney working as the lawyer of the day was “on the hook” for a person’s case until new counsel was assigned, Simoni said. Now, her staff sees significant gaps.

“We have some amazing partnerships but, as often, we do see people falling through the cracks,” Simoni said.

Ruffner said he rarely receives notes from the attorney serving as lawyer of the day documenting what occurred in court for his assigned clients. The Sixth Amendment Center points out these inefficiencies delay the preservation of evidence and witnesses, and further hurt a defendant’s case.

The commission as a whole confronted the reality earlier this month that cutting off the Lawyer of the Day program without a replacement program wouldn’t solve the state’s representation or constitutional problems. And major structural change would require state legislative approval with a short session looming a month away.

“We’ve had adequate time to identify what needs to be fixed. Now, I think the impetus is on us to start proposing solutions and deliberating actual solutions. We’ve done enough diagnosis, now (it’s) time for treatment,” Tardy said.

Deciding whether Maine should switch to a public defender office will take less time than appropriately sizing the office, determining its costs and implementing it, Tardy predicted.  

“You can’t say today that we’re going to have a public defender project and then start it Monday,” Tardy said.

The Maine Center for Public Interest Reporting is a nonpartisan, nonprofit news service based in Augusta. Our public-facing website is pinetreewatch.org.