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Fallout of Maine's Underfunding Of Indigent Criminal Defense Goes On

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A commission in Maine which oversees criminal defense for those unable to afford their own attorney continues to deal with the fallout caused by a failure by the state to provide enough funding to do its work.

The Maine Commission on Indigent Legal Services has spent nearly two years addressing criticisms by the Boston-based Sixth Amendment Center about a lack of quality and financial oversight, inadequate training, the low bar to entry for defense attorneys to take court-appointed cases, lack of mentoring for new attorneys, and low pay that has been frozen for years for those new and experienced attorneys who do the work. Criminal defense is a constitutionally-mandated obligation that the government has to provide to a defendant who is unable to afford one and who is at risk of a jail sentence.

Proposed reforms to improve the existing system included providing an increased budget for more staff to provide better oversight, increased training requirements for new and existing attorneys, establishing a public defender entity in Kennebec county and a state-wise appellate office, among others. Additional funding for all of that has been denied and the budget announced by the governor on Friday was flat, and will remain so for the next two years as well - unless the legislature decides to override the Governor and award MCILS more money. Some improvements that will still go forward in any event, such as training for new attorneys, will have to come from existing and already stretched MCILS funds.

Robert Cummins : "charade"

Other reforms included discussing proposed new rules for existing lawyers to follow. During Monday’s meeting commissioner Robert Cummins called the discussions “a charade,” urged other commissioners not to adopt any rule changes (a motion to “table” them, or put them on hold, did not happen and therefore did not get voted on), and asked “Why proceed as though we are functional when we are not?”

Some criminal cases require criminal defense attorneys who already take court-appointed cases to apply for entry on to specialized attorney panels – such as for dealing with criminal defendants accused of more serious felonies, sexual offenses, homicides, operating under the influence, and others. Entry on to those panels requires attorneys to meet certain minimum training (something not provided by the State but at an attorney’s own expense) and a minimum level of experience to take those kinds of cases. Part of the recent work of MCILS has been to make eligibility tougher for those more serious and specialized cases. A subcommittee has spent months revising rules to do that, but needed more commission staff to increase oversight. Those proposed changes have been put on hold.

The planned improvements also included increasing the amount of training required for new attorneys to get on the court-appointed roster in the first place. The plan, which is still going ahead, is to compel attendance for newly-rostered attorneys on a one-week course, rather than what used to be a one-day course, sometimes just a video replay of that course. This minimum training has not happened since the pandemic, and now the commission is seeing a reduction in the number of attorneys willing to do court-appointed cases. New attorneys have been seeking to get on the roster to meet the need in some areas, such as in Bangor and Aroostook county.

At a commission meeting on Monday, commissioners had few options to restart training. The new week-long course is not going to start until the Fall of 2021. The effect of the outcome of that meeting was that there is still no means of addressing the shortage of rostered attorneys in areas that need them.

As a result of the decision by the governor to reject the increased spending needed, the commission is also back to handling its existing budget, which has been consistently under-funded by more than two million dollars for the past six years. Each year the commission has had to ask for a supplemental budget to make up the shortfall between its allotted budget and the money spent, and that is the case again for this financial year ending in July. That is a far cry from the ambitious proposals to double the existing and inadequate budget after months of discussion and proposed solutions to address criticisms by the Sixth Amendment Center.

Part of the reforms included increasing the hourly rate of attorneys doing assigned cases from $60 to $100 an hour, which would also encourage more and experienced attorneys to do the work. That increase is also not happening.

Other issues raised include the fact that any criminal defense attorney who submits a voucher that is more than ninety days old (that is the time after the case ended) will not be paid. The commission’s former executive director did not strictly enforce that rule, and it is that reliance that might cause a problem for the commission if attorneys who have done work that will not be compensated decide to take legal action on the basis that MCILS has been unjustly enriched.

At their meeting on Friday, the commission backtracked on that and said the rule would now be strictly enforced on April 1st, April Fool’s Day. Commissioner Michael Carey said suddenly enforcing the deadline strictly (the rule has been in place for eleven years) and without notice was not fair. Further rules will be drawn up to allow discretion by commission staff about a waiver.

Since the resignation of the former executive director of the commission, John Pelletier, an advertisement was posted to find a replacement. Not surprisingly, as of Monday, there have been just six applications.

The commission has proposed appointing an interim director before the appointment of someone permanent. Commissioners met on Friday to discuss that appointment. An offer will be made to a candidate and if they accept an announcement is expected next week.


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