Superior Justice Michaela Murphy talks in September with Assistant Attorney General Sean Magenis, who is representing the Maine Commission on Indigent Legal Services, at Kennebec County Superior Court. Brianna Soukup/Staff Photographer

State officials and a civil rights group say they have hashed out a new plan to work on long-term reform of Maine’s system for providing attorneys to poor defendants without compromising their right to immediate help.

The Maine Commission on Indigent Legal Services and the American Civil Liberties Union of Maine have been negotiating a settlement for more than a year. The ACLU sued the commission in March 2022 for failing to meet its constitutional obligations to provide legal representation to Mainers who can’t afford their own lawyers.

The new agreement must be approved by Kennebec County Superior Justice Michaela Murphy, who already has rejected an earlier version of the deal. If she rejects it a second time, the case could be forced to go to trial – which would likely be a long and complicated event. A hearing to consider the new deal has not yet been scheduled.

The lawsuit stems from what many have called an ongoing crisis in the indigent legal defense system, where hundreds of private attorneys are no longer willing to take on court-appointed cases, causing some poor defendants to go days without having an attorney appointed. The Maine Commission on Indigent Legal Services is responsible for maintaining and overseeing a list of private attorneys willing to represent Mainers who can’t afford their own lawyers in criminal cases and some parental rights issues.

Murphy rejected the initial agreement the ACLU and the commission reached in August, saying she would only approve something that provides emergency relief to Mainers who need an attorney.

But the latest version of the deal is largely unchanged; it mostly points to recent efforts in state courts to release or dismiss criminal cases against defendants who don’t have lawyers and clarifies language about what other agencies the plaintiffs could sue or challenge while the commission works on achieving its long-term goals.

MEANINGFUL RELIEF

Murphy took particular issue with a provision in the initial agreement that would have paused the lawsuit for four years, essentially preventing the plaintiffs from pursuing other claims.

But ACLU of Maine Chief Counsel Zachary Heiden said Tuesday that the agreement would only bar people from filing a similar lawsuit and that it’s never stopped anyone facing criminal charges from taking other steps – like requesting pretrial release or dismissal because they don’t have a lawyer.

“If people want to sue prosecutors, they want to sue the attorney general, they want to sue the governor, the jail, they want to bring petitions for writs of habeas corpus – those are all things that people are free to do. Cases like that can continue to be brought,” Heiden said.

If Murphy rejects the agreement again, he said the parties likely will go to trial. Court documents say they expect a trial would be at least three weeks long and resuming the discovery process would be expensive and burden the state’s already overrun court system.

“I still think if it goes to trial we would be successful, but I think we’ll get much more meaningful relief sooner if this is resolved by settlement,” Heiden said.

Assistant Attorney General Sean Magenis, who is representing the commission in the case, declined to comment through a spokesperson who said the office doesn’t comment on pending litigation.

DEBATING RELIEF

The new settlement doesn’t call on the commission to do anything differently – rather, it calls attention to recent efforts in Maine courts to help criminal defendants who have been locked up for weeks, sometimes months, without a permanent court-appointed lawyer.

Since Nov. 3, Maine courts have been holding weekly review hearings for defendants who still need lawyers. They use those hearings to reevaluate bail and their charges. Under the agreement, the commission will train lawyers of the day, who represent defendants temporarily, on what they can advocate for during these hearings.

The agreement also references a petition to the Maine Supreme Judicial Court that has asked the state to release defendants who did not have an attorney for at least seven days. The petition has been amended several times and now only includes two Aroostook county defendants who have been in jail without a lawyer for weeks.

Robert Ruffner, one of two defense attorneys who filed the petition pro bono in September, said Tuesday that the narrower petition is still pending and therefore he doesn’t think it should have been referenced in the settlement agreement.

“I think it’s problematic that they’re sort of somehow saying that that’s enough to allow the settlement to go forward,” Ruffner said. “There’s no guarantee, absent a ruling from the (Supreme Judicial Court) in this petition, that anything will happen for these people who don’t get counsel.”

Defense attorney Robert Ruffner speaks during a Supreme Judicial Court justice hearing to determine whether Aroostook County defendants who are still waiting for an appointed attorney are being held in jail lawfully on November 14.  Shawn Patrick Ouellette/Staff Photographer

Heiden said the settlement compels the commission to do all that it can, considering the agency’s limited authority.

“Key features of Maine’s indigent defense system are within the control of actors who are not party to this suit,” the parties state in a motion filed Tuesday.

Only the Legislature and the governor’s office can create new public defense positions and hire public attorneys, the motion states, and only prosecutors can initiate criminal charges that only judges have the authority to oversee.

FOUR-YEAR FRAMEWORK

For all of the things out of the commission’s control, the settlement calls on both the commission and the ACLU to lobby lawmakers to fund more public defense positions. The agreement references a proposed budget the commission voted on in October asking lawmakers to commit to funding six more public defense offices around the state by 2025.

Both versions of the settlement detailed a four-year plan to improve data collection and attorney performance. It gives the commission six months to provide the ACLU with data on the number of attorneys taking cases, how many have been evaluated and suspended, as well as a random sampling of attorneys’ applications to join the commission’s rosters.

The ACLU would then, over the course of 10 to 18 months, provide the commission with its own recommendations for minimum attorney qualifications, and the process for addressing conflicts of interest, complaints and performance standards, according to the agreement. The ACLU also will provide the commission with recommendations to improve its “lawyer of the day” program, where attorneys represent indigent defendants during their initial appearance, before the court can appoint a defense attorney to the case.

The Maine Commission on Indigent Legal Services would then spend the fourth and final year evaluating attorneys based on these standards.

“This is one piece of the puzzle, but it is a very important piece,” Heiden said. “MCILS has a lot of obligations, a lot of responsibility, and this settlement agreement is going to help them do their job better.”