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Defense Attorneys Told To ‘Suck It Up’ As Morale Plummets

Commissioner Robert Cummins

A member of a Maine commission said embattled criminal defense attorneys should “suck it up” after being told of falling morale after constant criticism - including by him and another commissioner.

The comments came at the end of an uneventful February 22 meeting of the Maine Commission on Indigent Legal Services, which is tasked with fulfilling the state’s constitutional obligation to give defendants a lawyer if they can’t afford one and are at risk of a jail sentence.

Several defense attorneys spoke in a public comments portion after the substance of the meeting was over and said morale was falling. The Commission has been attempting to address a report by the Sixth Amendment Center nearly two years ago that criticized Maine’s underfunded system of providing court-appointed private attorneys.

Mr. Cummins said: “I have no question in my mind that some of the faults that have been identified by the Sixth Amendment [Center] exist.

”I say suck it up. If you think you’re being unduly criticized when you know the criticism is misplaced, you know, just.. just suck it up. And I’m a little frustrated seeing this for two years not working.

”This system isn’t designed to provide employment for lawyers at the expense of quality of representation of indigents.

”I’m new to Maine. When I came here and found out the way this system worked and before I was appointed to this commission quite frankly I thought it was crazy. I’ve worked in a public defender system I’ve worked with volunteer lawyers in the bar on all kinds of cases. I’ve seen post conviction reviews that indicated most public defenders and court-appointed counsel screw up.

”This system isn’t working. Let’s get it working and put aside our personal feelings or feeling offended or dejected.”

Mr. Cummins has been an advocate for a pilot public defender office project of providing salaried attorneys in Kennebec county, rather than the current system. However, no additional money has been provided by the legislature so far, nor proposed by Governor Janet Mills.

Maine's funding of criminal defense for impoverished defendants is a third that of Massachusetts and half that of New Hampshire. However, a 'like for like' comparison is difficult because Maine also provides defense for parents whose rights to their children are threatened which other states do not. This shows how behind Maine is in providing the funds needed to pay for a constitutionally-protected right to counsel.

The system is also overseen by a commission with a staff of just three people. This chronic understaffing and underfunding, coupled with low attorney compensation, lack of training, and low barrier to entry for new attorneys have plagued the system since the commission's founding a decade ago.

Maine is also unique in having a private-only model, rather than salaried public defenders. However, the system works well in other jurisdictions, such as the United Kingdom, which also has private attorneys getting publicly compensated. However, the U.K. provides adequate funding and oversees attorney work.

Justin Andrus, interim executive director, MCILS

MCILS interim executive director Justin Andrus responded to Mr. Cummins's remarks by speaking directly to attorneys watching the meeting - held on Zoom.

”We rely on you as individuals and as deeply held as Commissioner Cummins’ beliefs may be, they do not represent the beliefs of the agency that relies on you to do the excellent work that you are doing.  We have work to do. We have work that the agency could do.”

He said training will be provided to improve already competent representation. Currently training is paid for by attorneys earning $60 an hour, one of the lowest rates the the country.

”I spent 18 years doing what you’re doing and I know it’s not a profit center and I know it’s not why you do it.”

The Maine Commission on Indigent Legal Services is now three commissioners down. It is without any representative from any of the 300 rostered attorneys who do court-appointed work, following the resignation of commissioner and former defense attorney Robert LeBrasseur, who is taking up a government position. A second commission position for a rostered attorney, both of which are non-voting members, has remained unfilled for more than a year.

Lastly, commissioner Sarah Churchill, also a now former defense attorney but who did not do court-appointed work, was recently appointed as a judge.

* In a sub-committee meeting held before the full commission, it emerged that eight people are still in the running for the position of executive director of MCILS following the resignation of John Pelletier in December. A ninth applicant has withdrawn their application. The executive director position is currently held by Justin Andrus on an interim basis.


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