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UPDATE: New Grim Milestone Hit - 500+ Poor Defendants Have No Lawyer

Madawaska District Court

The number of unrepresented poor criminal defendants in Maine has now consistently passed 500 - yet another grim milestone in the crisis facing the court system.

This is less than a month after the number hit 400 individuals without an attorney, and less than three months after the number was 250.

A recent editorial in the Sunday Telegram, sister paper of the Portland Press Herald, claimed that a new name for the agency that oversees court-appointed criminal defense attorneys and new public defender offices with 22 additional salaried attorneys meant the issue had "turned a corner." It will take considerably more than that for this issue to be resolved. By way of example, Oregon - which has a population more than three times that of Maine - has said it needs 500 additional salaried public defenders to deal with a backlog in that state. It has just over 500 already.

The same editorial in the Maine Sunday Telegram said that the Maine Commission on Indigent Legal Services was "responsible" for more than 30,000 cases annually. The cases are brought against defendants by The State of Maine's district attorneys and their assistants or deputies. MCILS's 'responsibility' is only to provide defense attorneys for cases they do not prosecute.

A spreadsheet is regularly distributed by MCILS from court clerks. MCILS is to be renamed the Maine Commission on Public Defense Services as part of these supposed reforms and improvements. A year ago, even before the current case load, it was estimated that 400+ private attorneys were needed to be actively taking cases to even begin to deal with the problem, far more than 22 salaried public defenders on top of the dozen or so currently.

At the end of February, the spreadsheet distributed by MCILS of cases and people needing a lawyer showed 419 criminal defendants who can't afford a one did not have one to represent them. In a spreadsheet released on March 22, 2024, the number hit 506. This was a few days after the number reported topped 560 people - likely an anomaly. This 506 number was repeated in a later spreadsheet released on March 25, 2024. This is separate from the number of cases, since some defendants have to deal with multiple dockets and charges.

A judge has already determined that these individuals are entitled to have a defense attorney appointed at public expense. That is because of a landmark case from the 1960s. Maine's Law Court also provides state-funded attorneys under the state's own constitution for cases involving a potential loss of parental rights and other types of cases.

About a quarter of those needing a lawyer are sat in jail. In an analysis of the previous 419 people from earlier in March, more than 100 of them were in custody with no lawyer working on their case. Instead, the judicial branch has set up a weekly hearing at which they will be told repeatedly that no lawyer can be found.

The pace of the crisis also appears to have accelerated. In mid-January, the number of unrepresented defendants hit exactly 250. By the end of that month to the beginning of February the number started repeatedly going above 300 individuals. After a dip to around 280, the number started to balloon from mid-February and has continued to grow rapidly ever since.

Even Cumberland and York counties, the most populous counties in Maine, saw a growing number of defendants without an attorney. Aroostook County, which has traditionally had a shortage of all attorneys, is the worst affected.

This blog has previously reported that the number of available defense attorneys taking cases has continued to fall, and plummeted from its peak. The system needs hundred of lawyers to function properly - the vast majority of which are private attorneys appointed by a court.

A lawsuit was filed against MCILS by the American Civil Liberties Union of Maine, which obtained class action for several unrepresented clients. Both the ACLU and MCILS have now proposed two settlements and the second has now also just been rejected by the presiding judge in that matter. A trial is expected in June.

This lawsuit followed months of repeated critical coverage of defense attorneys by 'news' outlets such as The Maine Monitor, which has since moved on. As of the time of writing, its last story on this issue was in October, 2023.

A Rural Defender Unit was set up by MCILS consisting of a handful of salaried public defenders to also deal with some of these issues.

COMMENT: This is a case of being careful what you wish for. The system that existed before recent welcome changes definitely needed improving. However, it is hardly surprising that defense attorneys have had enough of being punch bags, and not just in reporting but daily in courts and 'it's always the defense's fault' appellate decisions. State prosecutors are routinely treated very differently in both fora. That gets noticed. The shiny object - criminal defense - has been the focus, but the basic premise in initial reporting that defense attorneys were making hay on the low rate of pay that previously existed was always ludicrous. But the die was cast and the narrative stuck. The 'problem' was defense attorneys. Except it wasn't. They were paid considerably less than prosecutors and many could not make it work so did something else in the legal field. However, there are many other players in the justice system who get no attention at all. It is about time they did. Backlogs aren't caused by attorneys who defend cases for clients. How about focusing on those who bring them and finding ways of allowing courts to dump the most petty and minor? Also, we don't need thanks, just not barely-concealed contempt. That would be a good start.


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