Poor criminal defendants in Maine may get a publicly-funded lawyer earlier that their first appearance in court, according the head of the commission responsible for providing indigent defense.
Currently, a so-called lawyer of the day oversees a defendant’s initial appearance or arraignment. That lawyer deals with multiple cases in a short space of time before the cases are either resolved that day or then assigned to a different attorney who is appointed by the court. This system was criticized by the Sixth Amendment Center, a Boston non-profit that examines the way states provide criminal defense attorneys for those unable to afford their own.
Often at those hearings, a plea offer is made that could include a note by the prosecutor that a defendant is not at risk of jail - even though a sentence is set by a judge. That ties the judge’s hands in assigning a lawyer because if they then impose a jail sentence without an accused person having been given one, it is unconstitutional. It also has the effect of prosecutors deciding who gets an attorney. That could mean a person pleads guilty without ever knowing if their offense has devastating after-effect - such as deportation, job loss, eviction, or other collateral consequences.
Part of the cricisim of lawyer of the day system is that different attorneys are involved. The model way of handing such cases is one lawyer getting involved early and throughout the case - called vertical representation.
In January, Justin Andrus, executive director of the Maine Commission on Indigent Legal Services, told the podcast Public Defenseless that until recently half of cases were resolved without any attorney being appointed at all, or after a lawyer of the day was the only person involved. Now prosecutors are legally banned from talking directly to unrepresented defendants unless they have waived the right to a lawyer - and many defendants now call Mr. Andrus’s office because the prosecutor will not talk to a defendant before a hearing because of that statute.
In the podcast he gave a glimpse of reforms to get defense attorneys involved sooner than an initial appearance or arraignment. The potential change could come before the end of 2022. This would involve attorneys taking and representing clients and dealing with some of the calls now going to him and his office.
"We’re developing a program that, and I don’t want to make a promise I can’t keep, but ... I would like to turn it on December 1st… to have early intervention counsel available through our office. These would be contractor attorneys, not my employees, but they would effectively be in the circle, to take those calls, to engage with those people immediately wherever possible to provide permanent assignments there, well before that lawyer of the day event, so that we can get into that true vertical representation as early as possible.”
He gave no details of what this program would look like, but Public Defenseless had a scoop on their hands.