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Budget Squeeze Threatens Modest Revamp for Defense Commission

Justin Andrus

A potential budget squeeze threatens potential improvements planned for the commission that oversees criminal defense for the poor in Maine - while more attorneys continue to stop taking cases in even the state's most populated counties.

The Maine Commission on Indigent Legal Services (MCILS) held a commission meeting on May 24, 2021, in which the major issues facing the agency were addressed. New positions to improve oversight of performance and billing of attorneys, along with training, that have already been approved are now under threat.

In the budget process, despite a surplus of tax revenue and additional federal resources, it remains unclear whether MCILS will get any more than the existing woeful funding that it gets to pay and oversee defense attorneys in the state. If new funding does not come, the state will effectively be ignoring the recommendations of a critical report that recommended more staffing for the commission, better training, higher attorney compensation, and a host of other reforms the report said were needed.

As part of that process, the commission's interim executive director, Justin Andrus, Esq. sought - and was given - permission to appoint several additional staff on contract to go some way towards instituting improvements. These four positions would cost about $500,000 a year. However, as the post-pandemic period has ended and the backlog of cases have begun to start heading towards trial, Mr. Andrus said the money set aside to the pay for those positions is now likely to be eaten up by the extra work now being done and billed for by defense attorneys as courts open back up and trials restart.

This backlog has been covered in this blog, and amounts to more than an additional half of the normal case load - or 153%. Cases that are more than six months old has nearly quadrupled (up 358%). This is also likely to lead to more expensive cases that reach selection of a jury, preparation for which in defense attorney time is also more expensive. However, some of those are being resolved later, with better plea offers that mean a jury trial does not occur.

The other issue that was discussed in detail was the continuing fall in the number of attorneys willing to take court-appointed cases. Again, this problem has been addressed on this blog. Over the last two years, every court across the state has seen a fall in rostered attorneys ready to take state-funded cases for indigent clients unable to afford their own lawyer - while case numbers have skyrocketed because of the pandemic. The biggest decline has been in the number of attorneys for child protection cases, where a parent is threatened with the loss of parental rights for their child. Maine is unusual in giving parents a right to an attorney for those cases. Mr. Andrus estimated a fall of about a quarter in the number of attorneys for those case types.

Time and again the hourly rate of $60 an hour, which has not increased in several years, was mentioned as a reason, in addition to attorneys being overwhelmed with cases.

There was also anecdotal evidence that there was also a shortage of people willing to take specialized cases. The Commission has cut the number of exceptions of attorneys appointed to cases for which they are not eligible on specialized case types (OUIs, sexual assault, serious violent felonies among others) to about a tenth of past levels, down to seven cases from an estimated 60-70. However, people are also taking their names off of rosters because they are overwhelmed with cases.

Commissioner Ronald W. Schneider, Esq. said MCILS can't reduce standards to meet that shortage and must "hold the line" on making sure those who take specialized cases are eligible.

He then made the extraordinary statement: "If this system falls apart because we don't have appropriate funding - we can't pay people more than $60 an hour and everybody is saying that there's no way I can do this work for sixty dollars an hour any more - then I think we have to let that happen."

He said the fix was known (implying an increase as recommended by the Sixth Amendment Center to $100 an hour), and that the commission had support from the state's Judiciary Committee, which recently put forward an increase to $80 an hour - well short of the recommendation. By contrast, the rate for a federal appointed case is more than $150 an hour. Maine's current rate is one of the lowest in the United States.

In the public comments section, Androscoggin attorney James P. Howaniec, Esq. said he has been appointed to five homicide cases, including four murders. He said clerks in Portland were looking beyond the city and Cumberland County for a homicide attorney.

He said the current pay for attorneys of $60 an hour was a huge problem. At the moment, the least experienced attorneys doing misdemeanors are also paid the same amount for highly experienced attorneys doing homicide cases.

"We just can't make a living getting sixty dollars an hour. So when you've got someone doing four murder cases at sixty dollars an hour because we can't find homicide lawyers we got a problem. We've got a big big problem...

"We're barely hanging on here because we can't keep losing these experienced trial lawyers who've been doing it for years.

"It's as bad as I've ever seen it in 35 years ... to the point where I think I'm going to have to get off the list."

  • The Commission said it had also started 22 attorney investigations mainly related to billing and payments to paralegals billed as if the attorney had done that work. The commission is considering a moratorium for attorneys who have billed this way in the past.


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