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Budget Cuts And Stalled Public Defender Plans Frustrate Agency

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Frustration about budget cuts and stalled progress on a proposed public defender system for Maine spilled over at a meeting of a commission that oversees criminal defense for defendants unable to afford a lawyer.

The Maine Commission on Indigent Legal Services has been told that its budget for its current year will be cut by 10%. However, the number of criminal cases do not work to a budget and are constitutionally mandated. An indigent criminal defendant is entitled to an attorney when there is a risk of a jail sentence. As Commissioner Robert B. Katz, Esq. put it, “We are unique in our inability to cut back any further.“ MCILS Executive Director John Pelletier, Esq. said of the budget cut, “It really puts us in an untenable position.” Along with Commission Chairman Joshua A. Tardy,, Esq., he is due to negotiate with the State’s Budget Office to reduce the proposed cut. The Commission faces a 10% cut for this year using a process known as ‘curtailment’ to claw back formerly-appropriated money. The Commission’s budget allotted for the current financial year is $2.8million short of its budget during normal times. That is also the case for the Commission’s proposed budget for two years after that. In the last financial year the budget for MCILS had $2.6m unspent, mainly because of the effects of the pandemic closing down courts, and the Commission has asked that this unspent money apply to this year’s budget as the number of cases starts to rise again. Year after year the Commission’s budget is traditionally short of the amount needed to pay for indigent criminal defense. Mr. Pelletier has told other state entities that proposed reforms, such as setting up a public defender office, is going to cost more money as the proposals for a cut are being pushed. The state government is asking for a similar cost reduction for two years after the existing financial year. The State’s Budget Office continues to move forward with a budget cut by meeting individual agencies with their proposals for how to implement it. These are due from MCILS by the latter part of next month. Commissioners met this week, when the cuts were discussed. The main frustration was a focus on funding the existing system, when there had been momentum in previous deliberations to establish a public defender office - starting initially with a pilot project. This would likely be a contracted entity given a budget and employing salaried lawyers. At the moment, private criminal defense attorneys are assigned an indigent client by the court and get paid by the hour for the work they do and bill MCILS via a voucher system. The Commission has spent months discussing how to address a critical report by the Boston-based Sixth Amendment Center about how indigent criminal defense is provided in Maine. The state is unique in paying private attorneys for indigent criminal defense rather than have an agency or entity effectively providing it as one big law firm. Commissioner Robert P. Cummins, Esq. said he was “troubled” by the discussion on current operations for a system he said was “fundamentally wrong.” “We need a public defender system. We should not be projecting years forward to keep operating in the same old constitutionally defective manner,” he said. Commissioner Cummins has been the most vocal advocate of a public defender system in Maine when discussing the issue at MCILS meetings. But his advocacy of the form of a public defender office is within the context of the existing, and now reduced, budget. He wanted the Commission to proceed with a pilot public defender office in Kennebec county at the latest meeting. Commission chairman Tardy said, “The idea of having [a pilot office in Kennebec county] be part of our biannual budget to the Governor and ultimately to the legislature has extreme merit.” He’s proposed setting up a subcommittee to put concrete proposals to law-makers quickly. But commissioner Cummins expressed his frustration when said, “I’ve been appointed to this Commission. It’s been around for a decade and can’t get its hands around the most fundamental challenge it has and that is providing effective defender devices and it’s frankly dismaying. And I feel like I’m not doing my job and I unfortunately feel like the commission is not doing it’s job.” Commissioner Robert LeBrasseur, Esq. said, effectively, that the form of how public defense is provided is secondary to adequate funding. MCILS currently employs two people, which he said was "inadequate." He said, “If we can’t even appropriately fund the Commission, why do we think a public defender’s office is going to be appropriately funded,  and the issues raised by the Sixth Amendment Center report are automatically going to be corrected? Without appropriate funding and without appropriate resources, we’re still going to have the same issues that the Sixth Amendment Center has raised in a public defender office. It doesn’t matter what you call it - a commission or a public defender office - you’re still going to have those issues. Those issues exist in public defender offices today because of inadequate funding.” He suggested drafting bills for the legislature for them to decide how indigent criminal defense should proceed in Maine in future. Commissioner Ronald W. Schneider, Esq., who said he would vote against any commission-proposed budget cut, said the current system of private attorneys is the reason why adequate funding has not been provided by the legislature. He said, “It’s something we’ve been chasing forever and it’s distracted the commission from actually achieving its mission. If we don’t change the model we’re not going to change this constant chasing of funding.”

He also said, “I actually believe a [public defender office] would be able to deal with the concept of funding [better] than with disparate 400 / 500 lawyers sending in bills, and with a ‘this month up and down’ kind of funding model ... and we don’t know what’s coming in.”

in other matters discussed, there is a possibility that cases involving a risk of jail will be assigned pre-arraignment following a pilot in Androscoggin county that may be rolled out state-wide. As a result, Lawyers of the Day will deal with more ‘no risk of jail’ cases.

The Commission is also considering rule changes to roster eligibility to allow attorneys to deal with more serious and specialized cases, such as OUI. Some changes may require legislative approval.

A provisional award for a new training program for attorneys was unanimously approved. It was not discussed in open session. Any potential contract will eventually become public, but the details were not disclosed.

The next MCILS meeting of commissioners will be on October 6, at 8am. The budget issue and any proposals will also be discussed at a separate meeting on October 23, at 8am. * The only Commissioner who currently represents indigent criminal defendants is Robert LeBrasseur, who runs a solo criminal defense practice in Portland. He is a non-voting member of the Commission. The chairman, Joshua A. Tardy, is of counsel with Rudman Winchell, and the governmental affairs firm Mitchell, Tardy, & Jackson. He deals with ‘civil and criminal litigation’ but not indigent defendants; Mary Zmigrodski, has a general practice firm;  Sarah Churchill, is partner at the law firm Nichols & Churchill, a private criminal defense and civil litigation practice; Robert P. Cummins is of counsel with the law firm Norman Hanson DeTroy; Ronald W. Schneider, Jr is with the law firm Bernstein Shur dealing with education, health care, labor and employment, and litigation; Robert B. Katz runs a civil litigation practice in his own name; Michael Carey, of Brann & Isaacson, specializes in state and local taxation, intellectual property, and litigation.


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