The two men were both in York County jail for more than a week, unable to post bail on domestic violence charges.

One was charged with domestic violence terrorizing after telling his ex-wife, in front of police, that he was going to kill her. The other was charged with domestic violence assault after pushing a woman to the ground, injuring her, after she told him to leave her home.

Both men argued in court on Wednesday there was more to the story. A prosecutor pointed to the victims.

But without defense attorneys for either man, the most that Superior Justice Richard Mulhern could consider was adjusting bail.

Across Maine, there are hundreds of cases unable to move forward because the court cannot find an attorney for defendants who are constitutionally entitled to one.

In York County, one of the state’s busiest districts, domestic violence cases accounted for roughly 62% of all unrepresented cases as of Wednesday.

“We don’t know exactly why it’s happening, but it presents a big concern,” said Julia Davidson, an advocacy director at Caring Unlimited, which supports survivors of domestic violence in York County.

Davidson said victims are having a hard time following what’s happening because of the lack of attorneys. They don’t know when hearings are, or whether their alleged perpetrators have been released from jail.

The consequences to these defendants are also serious, said Aditi Goel from the Sixth Amendment Center, a watchdog group tracking public defense systems around the country. Being criminally charged can affect a person’s ability to work, find housing and be with their families, especially when they’re in jail. Roughly a quarter of the state’s unrepresented defendants were in custody Wednesday.

“The thing is, at the start of a case, it is an inquiry,” said Goel. “There is no foregone conclusion that the defendant has committed a crime, there is just probable cause that the defendant committed a certain crime. And that is why there is a constitutional duty to investigate a case, and that’s why every defendant and every person has a right to have their case investigated.”

Meanwhile, some defendants have been waiting months for a lawyer while still in jail. About 36% of unrepresented defendants charged with domestic violence were behind bars as of Wednesday.

Some have argued that they should be released as a remedy for their Sixth Amendment rights being violated. But prosecutors have argued heavily against this, particularly when a defendant has a history of violence or a history of violating court orders.

Even more concerning to some advocates is that there is no system in place to prioritize assigning attorneys to these cases where defendants are accused of violence against a partner or household member.

“Which is very concerning when we’re hearing across the state these arguments being made that the remedy for the Sixth Amendment violation should be released back into the community,” said Andrea Mancuso, public policy director with the Maine Coalition to End Domestic Violence.

THE VICTIMS

Shira Burns, executive director of the Maine Prosecutors Association, said the crisis is demoralizing for victims who have no role in these criminal cases but are affected by their outcome.

Burns was a prosecutor in York County for 10 years, focusing on domestic violence cases.

The longer a domestic violence case takes to progress, she said, the less likely a victim is to cooperate, either due to witness tampering or just frustrations with constant delays. Victims must be notified of every court date, Burns said, and it’s frustrating when those dates have been rescheduled several times because a defendant still needs a lawyer.

“Even though it’s the state versus the defendant, the choices and the decisions and the outcomes directly affect this victim’s life,” Burns said. “They have no control in the criminal justice system. Everything that’s happening is a decision that they’re not making, but that will affect their life.”

Mancuso said victims are also concerned after hearing that some are advocating for judges to dismiss some unrepresented criminal cases. It’s not common, but even in this speculative stage, victims are concerned that their perpetrators’ cases will be dropped and all monitoring conditions will disappear.

Mancuso said organizations like hers are having hard conversations with victims about seeking civil protective orders, putting them “directly in an adversarial place with a person who has harmed them.”

Davidson, the advocacy director in York, said victims are especially on edge following a deadly fire and shooting this summer in Auburn, where a man facing serious domestic violence charges was released from jail on reduced bail after waiting three weeks for a court-appointed lawyer. He went on to die in an officer shootout after police say he went to his ex-girlfriend’s house, despite bail conditions barring him from contacting her, and set it on fire, killing another man.

Androscoggin County has also been disproportionately affected by a shortage in lawyers taking domestic violence cases. On Wednesday, 40% of unrepresented defendants there were facing charges related to domestic violence or broken protection orders.

The Auburn case also put new pressure on judges and the Maine Commission on Pubic Defense Services, a quasi-state agency tasked with recruiting and overseeing lawyers who represent indigent criminal defendants. While that includes public defenders, a majority of cases are still handled by private attorneys who are reimbursed by the state for their work.

The commission has been struggling to find those private lawyers in specialty cases, such as domestic violence. 

WHAT’S BEING DONE?

The commission’s executive director Jim Billings declined to talk about the struggle to find attorneys for domestic violence cases. He said the commission will form a committee to study the issue and needs more data before he can speak about it.

At a public meeting focused on the commission’s upcoming budget request, Billings suggested offering attorneys extra money to take cases that have been more difficult to staff.

“I think it is not a surprise to me that when attorneys get paid the same hourly rate to take a domestic violence case and to take a property crime, or a driving offense case, that attorneys are choosing to pick up cases that are not domestic violence,” said Mancuso, from the Maine Coalition to End Domestic Violence.

She and others have questioned what Maine courts are doing to address the problem. Billings emphasized during an Aug. 21 meeting with lawmakers that prosecutors and judges also have a role.

“It is not the indigent defense system’s problem alone to fix,” said Goel from the Sixth Amendment Center. “I just don’t see how this problem can be solved without there being a coordinated effort. And I’ve never seen a crisis get solved by pointing the finger at one another and blaming one another. You have to work together to fix this.”

Goel said this is a national problem. Many states, particularly rural ones, are struggling to find enough attorneys for everyone in the throes of their criminal justice system.

She noted states where both short- and long-term deadlines for court cases have made a difference.

In Oregon, a U.S. District Judge ruled temporarily that defendants must be released within seven days of being charged if they still don’t have an attorney (although that doesn’t apply to defendants who commit new alleged crimes while out of jail).

In Massachusetts, courts have required for almost 20 years that defendants be released from jail within seven days if they don’t have a lawyer, and that their cases be dropped within 45 days.

Burns from the Maine Prosecutors Association was troubled by suggestions of releasing defendants or dismissing cases in which lawyers haven’t been appointed.

“The smartest way to fix the underlying problem is getting people who are a known public safety risk an attorney,” Burns said. “We truly would be risking public safety. What cost would that come at?”

But even seven-day and 45-day deadlines are less than ideal, said Goel, who used to be a public defender in Massachusetts. She said that the sooner someone has counsel, the better.

“Evidence just disappears,” said Goel. “Like most camera footage from stores or street cameras, they re-record within 24 hours. If you don’t grab it, it’s just gone.”

And for defendants who are actually victims of domestic violence themselves, Goel said waiting too long for a lawyer is even more detrimental. She recalled taking pictures of defendants’ injuries, showing they were defending themselves against an intimate partner.

“No case is the same,” said Goel. “That’s the thing, no domestic violence case is the same.”

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