Potential reforms to the way indigent criminal cases are handled were again discussed this month (Jan. 14) in Augusta by the commission set up to oversee legal representation for those who can’t afford a lawyer, following heavy criticisms of the current system.
A report released last year by the Boston-based Sixth Amendment Center raised issues of training, oversight, financial controls, effective denial of the right to a lawyer, low hourly rates, conflicts of interests, monopolies of appointed and private counsel in some counties, and many other concerns.
The report was also critical of oversight by the Maine Commission on Indigent Legal Services (MCILS), a state entity created by legislation in 2009 to oversee Maine’s system of private lawyers who are appointed to indigent defense cases. Maine does not have a public defender office and all indigent cases are handled by private attorneys.
This has led to reporting that paints private attorneys who get assigned cases as somehow bilking the system, when they are paid just $60 an hour – one of the nation’s lowest rates for trained legal professionals. The Sixth Amendment Center said this should be increased to $100 an hour and commission member and defense attorney Robert C. LeBrasseur raised that issue again at last week's meeting.
Bad publicity about the amounts claimed by Maine criminal defense attorneys dealing with indigent cases has resulted in a fall in the amount claimed, despite an increase in cases.
Over the first half of the fiscal year, the number of cases and vouchers submitted by private court-appointed attorneys has increased - but the voucher amounts claimed for those cases has been below projections. This meant the commission that oversees the funding of indigent criminal cases was $338,000 ahead of projections for the fiscal year to date.
The Executive Director of the Maine Commission of Criminal Legal Services (MCILS), John D. Pelletier, told commissioners that from his experience, these kinds of trends tend to carry forward for the rest of the fiscal year. Despite this, he said the Commission is still likely to have an overall shortfall, and this is likely to delay paying of vouchers to attorneys for services already given to defendants. MCILS has made a supplemental budget request of $2.1million to prevent this - but there is no guarantee that the money will be granted.
The ACLU of Maine has threatened legal action over the current system. It has been heavily involved in the discussions about future reforms – with its legal director, Zach Heiden, invited to past and future meetings with New Hampshire and Massachusetts about their public defender programs, and about minimum standards of training and continuing legal education for attorneys assigned to indigent cases.
The commission has established subcommittees to address the report's concerns and have been and will examine training, standards, the Lawyer of the Day program, financial oversight, how indigent cases should be handled (such as whether there should be a public defender's office, and the requirements needed to be on a specialized roster (such as sexual offenses and OUI cases).
One of the potential proposals being discussed is separating the commission’s oversight of criminal cases from civil matters, which includes civil commitments and child protection. This could include establishing a separate commission (in addition to the Maine Commission on Indigent Legal Services, or MCILS), or at least having another MCILS executive director focused exclusively on civil matters.
The subcommittee dealing with standards has been using the current Maine's existing minimum standards as a starting point, while using others – such as Massachusetts – to draft more comprehensive general standards for all counsel. This subcommittee will also be working on standards for specific panels (those attorneys that deal with particular types of cases, such as OUIs or sexual offenses) and what the eligibility standards should be for an attorney to be on any panel at all.
The lack of training for new attorneys was also addressed at last week’s meeting. For those with a lack of trial practice, one potential idea being explored is a mentor panel for newly rostered attorneys. They would work with more experienced attorneys as mentors for their first four or five cases. Another potential rule change is having to have a senior co-counsel for a new attorney who had not conducted a trial before, with a mentor used for experience. This idea could also be adopted for civil matters.
In addition, another subcommittee has met once to discuss improvements in training and ongoing continuing legal education for assigned attorneys. This could involve mandatory training as a gateway for eligibility to get assigned cases, with no guarantee of admission. Currently, attorneys merely have to complete a mandatory one-day course with no other factors to gain admission on to the roster to be given assignments. Assigned counsel have to complete specific hours of continuing education, but this is often met by an annual meeting of the Maine Association of Criminal Defense Lawyers.
Another idea being explored is that to continue being on the roster for assigned cases, criminal defense attorneys may have to attend a mandatory training course every two or three years. This may also include an element of effectiveness or decision about whether that attorney can continue to take assignments. No final proposals have been made.
One of the Sixth Amendment Center’s proposals in their report was establishing a pilot public defender office, where staffed attorneys (rather than exclusively private counsel, as exists now) would deal with indigent criminal cases. Models currently being examined by the commission are those in New Hampshire and Massachusetts. The Sixth Amendment Center report recommended establishing a pilot public defender office in Cumberland, the state’s most populated county - but if this proposal gains traction, this may happen in Kennebec or Penobscot counties instead.
Another focus has been on the future of the Lawyer of the Day program, which was also heavily criticized by the Sixth Amendment Center. Attorneys are given duty days to represent ‘in custody’ or ‘walk in’ clients on that day, before either pleading guilty and ending the case that day, or pleading not guilty and getting an assigned attorney. Among many issues raised about its effectiveness are a lack of continuity of representation and delays in the subsequent assignment of a lawyer who will oversee the rest of their case – a delay this is particularly a problem for those defendants still in custody without a lawyer for a long period. There is still debate about whether the program should be scrapped, or merely reformed. Practice standards for this program have also been an early focus for improvement while that discussion continues – because while it still exists, clients are under its purview every day.
Maine’s Chief Justice Leigh I. Saufley and other trial judges were scheduled to meet members of the commission and staff about the program the day after the commission meeting in Augusta to discuss the judiciary’s opinions about it. Future meetings may also involve prosecutors – a potentially troubling development. The Lawyer of the Day program has been criticized for helping to 'move the docket' with a constitutional veneer, rather than be focused on helping defendants.
In any event, some of the reforms may need legislative approval, while others can be adopted as part of the commission’s rule-making authority.
The commission is scheduled to meet in Augusta on February 11, when proposals by subcommittees will be discussed. The commission will also meet on February 25. Two other commission subcommittees are holding separate meetings on January 31. The commission will report its progress in addressing the Sixth Amendment Center's report to the legislature on or before March 1.
The audio of the full hearing is available here. The meeting lasts about an hour and 15 minutes.
Comment from attorney Marcus Wraight:
Reforms are needed, without a doubt. The availability of Maine-specific law materials and officially sanctioned trainings available for criminal attorneys is woeful. Training is minimal, and often attorneys have to look outside the state to get the skills needed to do the best job for their clients. Conversely, if someone wants to do the bare minimum required to represent the most vulnerable clients, it is highly likely they will be ill-equipped to do it.
However, some of the publicity about these issues has been simplistic for simply focusing on money. Criminal defense attorneys are not a sympathetic group, and don’t represent sympathetic people. But as I have often said, a criminal defense attorney is 'scum' until you need one. Then they are often your only friend. Criminal defense attorneys – at least the best ones - do this work often because we have seen an injustice, experienced the overreach of the state at first hand, or because it is simply a calling. Sometimes, this can be all three. Representing indigent criminal defendants certainly isn’t something done for financial enrichment, unless pitiful pay is a motivation. But attorneys must have a high degree of training just to pass the bar, and (like junior doctors), that’s only the start. What follows has to be years of more training, schooling, study, and work.
There is a reason that attorneys are not cheap – and nor should they be when paid for assigned defense work. The current system needs to be properly funded. If budget shortfalls at the end of the financial year mean attorneys do not get paid for the work they have already performed (imagine if your employer simply told you you would not get a paycheck because they couldn't afford to), and if they are paid a pitiful amount, it is they who subsidize the State of Maine. Attorneys who want to be good at the work have to find their own ways (and pay out of pocket, also subsidizing the State of Maine) for additional training (such as in trial practice, which plays no part in current skill improvement) to supplement the woeful training currently offered or available. All of this is unacceptable. Justice costs money. The bad publicity that has resulted from over simplistic reporting has also meant some attorneys are likely under billing for their time. This is also totally unacceptable. Either attorneys, who are highly regulated, are to be trusted to be honest. If they are not they should be disbarred by the board of bar overseers, or told they are no longer able to take assigned cases for over billing. The latter is within the commission's remit and discretion.
As an aside, much has also been made about the fact that Maine does not have a public defender (PD) office of government-salaried attorneys. There is no doubt that the system in some states, such as Massachusetts, is a model to be followed when it is well resourced and has the commitment of legislators. However, other states underfund their PD services, and attorneys are overworked and under resourced. Despite doing the work with commitment and passion, they are unable to provide effective assistance of counsel. So, this is not a binary choice. A PD office may keep the wolves and the ACLU at the door, but it is not a panacea either. It is also work noting that some countries, such as the United Kingdom (where I am from) provide services in the same way as is done in Maine - private attorneys who bill the government at the rate it sets - and the system, while not perfect (no system is), works well.
Finally, you may not think you need a criminal defense lawyer. You may even think you will never need an attorney to be given to you because you cannot afford to pay your own. However, you may be able to control your own behavior, but you cannot control whether a police officer decides to arrest you or a prosecutor decides to charge you. It may be for something you had nothing to do with, be a misunderstanding, or for behavior that is not a crime. It may be for something you have done, but the constitution requires that the state's feet be held to the fire and to prove its case with evidence and that it conducted itself adhering to the constitution. So, when you are assigned an attorney, you had better hope that the lawyer you get given is up to the job. If they are not, the State can simply walk all over you. It is government unchecked, and run amok. If the constitution means anything, it should matter most when you are accused of an offense and face confiscation of property (with a fine, or civil asset forfeiture), or even a loss of liberty. If not, good luck trying to fight the resources of the government.