A public defender system for Maine has taken a step closer, and if implemented would cover state-wise criminal appeals and trial-level cases in Cumberland county.
An entity would replace the current system of assigned private lawyers for trial-level cases in the state’s most populous county, which includes Portland. The change is likely a long way off because it is still in its early stages.
Maine is the only state in the country that uses private attorneys to help poor criminal defendants unable to afford their own lawyer. These indigent defendants get assigned a lawyer who is paid with public funds. The current Maine model may be unique in the United States, but not internationally. The United Kingdom also does the same as Maine in using private attorneys, publicly compensated for their hours.
The idea of the new public defender model was advocated in an as yet unreleased eight-page memo, by a subcommittee set up to look at the idea and report to the Maine Commission on Indigent Legal Services (MCILS), which is responsible for delivering criminal defense to poor defendants. The memo was discussed by MCILS in their February 25 meeting. It proposes a state-wide appellate level public defender with a criminal trial practice dealing with indigent cases in Cumberland county. The model proposed is that the State would contract indigent criminal defense work to a non-profit corporation, similar to what currently happens in New Hampshire. It had been originally suggested at the MCILS meeting on February 11 that three counties would roll out this idea.
Commissioner Ronald Schneider, Esq., who led discussions before proposing the subcommittee’s idea, said he felt it was "particularly troubling" that there is a "constant drumbeat that somehow Maine is so unique that we should remain the only state in the nation that hasn’t done what every other state has [in needing a public defender system]. We seem think we are so special. I mean we are special – but we’re not that unique.”
The subcommittee had looked at the state agency model used in Massachusetts (provided by the Committee on Public Counsel Services), but it opted to go in a different direction with its proposal to the Commission. The idea of contracting this work to a non-profit corporation raised concerns about parity of salaries for employed public defender lawyers with state employees, such as prosecutors. The proposed contracted entity would employ 12 salaried lawyers at the suggestion of the Sixth Amendment Center (6AC), which released a highly-critical report about Maine’s current system last April.
Among the many criticisms in the 6AC report was also the low barrier to entry (in experience and training) for new lawyers to take assigned cases, the lack of oversight in billing and the quality of representation, and the lack of training (other than what is required to remain a lawyer in Maine) for all attorneys to continue to represent indigent clients. However, the billing by defense lawyers has been the focus of reporting about the report, rather than its other more substantive concerns.
Commissioner Robert Cummins, Esq. said: “The system we have now is not working – it’s broken and we’re compromising significant constitutional rights.” He said he was dedicated to adopting a public defender entity from the start of deliberations and that “nobody is going to change my mind.”
Michael Carey, Esq., also a Commissioner, said: “[T]here’s nothing inherently better about [a] public defender or assigned counsel or retained counsel. What matters are the procedures to ensure quality … The state retains the responsibility regardless of what system it chooses to implement.”
In criticizing the current system, Schneider said: “I’m not sure we’ll ever get to where we would like to be from an oversight perspective.” However, the state still has the constitutional responsibility to oversee the new public defender entity, and retains an ongoing duty to monitor existing attorneys doing indigent criminal cases. The lack of current oversight was one of the 6AC’s report’s criticisms.
MCILS executive director John Pelletier, Esq. said better oversight has not acquired the focus of commissioners over recent years, and said continued oversight is a “glaring omission” in current deliberations. He said one way of addressing that would be to add more “resource counsel,” private attorneys who mentor new and existing lawyers, to also focus on evaluating all lawyers who work in indigent criminal cases. This idea is being explored further.
MCILS already has minimum standards for assigned lawyers, but does not have the staff or resources to oversee whether those standards are being met. There is also a lack of a mechanism to remove attorneys from the roster or to monitor whether the quality of representation is so lacking as to deserve removal.
New and even tougher minimum standards have been proposed for existing MCILS cases for criminal and civil cases (dealing with protective custody and civil commitments). However, the issue of oversight in the quality of representation of attorneys currently rostered – whatever the standards – is also still being worked out. This was a major criticism of the 6AC report.
Commissioner Robert LeBrasseur, Esq., who was heavily involved in drawing up the more rigorous minimum standards for assigned criminal cases, also partly addressed the report’s criticism of the current $60 an hour rate as being too low. He said: “The general feedback I have gotten … is that without adding oversight and addressing that and without addressing the rate, it’s not worth going forward on these standards essentially because we have standards now we don’t enforce, we can’t enforce, and until that’s addressed why bother with new standards ...”
One obstacle to more urgent reform efforts is that major substantive rule changes about who is currently on the roster, who can gain entry to more specialized panels (such as sex offenses, drink driving, or homicide), and the enforcement of the proposed higher standards, won’t even be considered until January next year. There is simply not enough time in the current session to make those changes.
These substantive rule revisions would include the proposals to heighten minimum entry standards for those who act as a Lawyer of the Day – an ‘on duty’ lawyer who provides brief legal advice to defendants who make a first appearance in court. A major reform is to make lawyers eligible to act in that role a member of a ‘specialized panel’ (similar to more serious or complicated criminal charges) with mandatory training and more minimum experience. Currently a new lawyer fresh out of law school can do this work. A legislative fix in the current session was one possibility being discussed to get around this potential delay in implementation. Rules that dictate what a lawyer should do now when already acting as a Lawyer of the Day are technical rules that would not and could be done faster. But, oversight of those standards remains an issue.
Minimum training standards for new lawyers to gain entry on the assigned cases roster – another area of criticism made by the 6AC – will also be changed immediately, or at least as soon as possible. Technically, this does not need a substantive rule change needing legislature approval. At the moment a new lawyer can take assigned cases after a one-day course (and attendees are not evaluated). This will now become a five-day course, though no mention has been made about an evaluation process for that course either. The existing rules allow MCILS to set that minimum standard already. The commission voted to approve that new minimum training, though how that is budgeted will be determined later.
The full February 25 meeting can be heard here.