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ACLU says Maine lets indigent defendants slip through the cracks

Maine is the only state that contracts with the private sector when people in the state accused of crimes can't afford to hire a defense attorney. It’s a system the American Civil Liberties of Maine calls unconstitutional.

(CN) — As he awaits trial on weapons charges, Andrew Robbins says he has spoken only once to the lawyer appointed to defend him, a conversation that lasted a mere 30 seconds.

Robbins was briefly out on bail after his arrest last summer but was rearrested on Oct. 30 for violating the terms of his release and a protective order, landing him behind the bars of the Cumberland County Jail in Portland, Maine where he remains to this day.

His attorney has not request a bail hearing, and Robbins has not heard any word about a plea deal or even discovery materials. Indeed the only discovery sent to him was for another defendant.

On Tuesday, Robbins became the lead plaintiff in a class action that says the way Maine provides legal counsel to indigent individuals accused of crimes inexorably tramples their rights under the law.

The American Civil Liberties Union of Maine Foundation calls Maine’s system entirely unique in the country. Rather than a public defender’s office, the Maine Commission on Indigent Legal Services solely contracts with private attorneys to provide legal services to individuals in the Maine justice system unable to afford an attorney themselves.

Robbins and the four other incarcerated individuals named in the suit say it’s a system that leaves them with little support. They describe attorneys who don't return their calls or became annoyed if they turn down a plea deal.

“The constitutional right to counsel is not fulfilled by the mere appointment of counsel. But the mere appointment of counsel is all that MCILS's system provides,” according to the 35-page complaint in Kennebec Superior Court. “Without any standards for evaluating caseloads, conflicts of interest, or attorneys' performance, MCILS has no baseline for establishing what effective representation requires — let alone mechanisms for measuring how appointed counsel are performing.”

As alleged by the ACLU, Maine's commission requires attorneys to take only a one-day course on minimum standards before representing individuals where the stakes could be confinement to a jail, the custody of their children or involuntary commitment to a hospital.

The commission furthermore offers no way to review complaints about private attorneys with which it contracts, according to the complaint.

Maine not only violates the Sixth Amendment, the ACLU says, but the state's own law requiring it to adopt adequate rules.

The complaint takes umbrage with Maine's lawyer-of-the-day system, wherein attorneys show up at 48-hour hearings for individuals making initial appearances on criminal charges. In Adroscoggin County, these lawyers have about five minutes to meet with a defendant, talking to them sometimes in the lockup. There, two attorneys have 200 individuals to defend, according to the complaint.

“There is no per se problem with a lawyer-of-the-day system. But the State's lawyer-of-the-day system, as implemented, violates two fundamental tenets of effective representation: effective assistance of counsel at the outset of a criminal case and continuous representation through the completion of a case,” the complaint says.

Zach Heiden, chief counsel ACLU of Maine Foundation, estimated in an interview that there are thousands of individuals who either are or will be entitled to counsel and are thus affected by the system created by the commission. He said he hopes the lawsuit will lead to a revamp of the state’s criminal justice system.

The lawyer contends that Maine's indigent defense system has been criticized for decades, leading the state to create a commission in 2009 that helped assign private attorneys to cases. Indeed, Heiden sat on the commission that helped establish the Maine Commission on Indigent Legal Services more than a decade ago.

“It was an important first step, but Maine never took the second step, and never actually implemented a system of supporting and supervising lawyers across the state,” Heiden said.

In 2019, the Sixth Amendment Center issued a report to the Maine Legislative Council that said the state’s system struggled to contain costs or ensure the legal services it provided to indigent individuals was effective.

After trying everything else, Heiden said the ACLU has turned to the courts in hopes of getting an order to force the state to comply with its constitutional obligations.

“Having the public defender's office is not constitutionally required,” Heiden said. “But what is constitutionally required is that the state, supervise, train, evaluate, compensate the lawyers who are performing indigent defense, and every other state has found it impossible to do that without public defender's offices.”

In addition to attorneys from the ACLU of Maine Foundation, the suit was filed by attorney with the Boston firm Goodwin Procter and the firm Preti Flaherty, Beliveau & Pachios.

Justin Andrus, executive director of the Maine Commission on Indigent Legal Services said the 2021 fiscal year was a busy one for the commission. It opened about 28,600 cases, the largest number fielded in its history. And fiscal year 2022 was shaping up to be similar. 

The commission was formed, Andrus said, to confront the conflict of interests that arose under the old system, where judges appointed counsel for indigent defendants.

Other states, Andrus said, take a hybrid approach to indigent defense, funding a slate of public defenders while also contracting with private attorneys, a method he believes would help Maine handle surges in cases.

The day the ACLU’s lawsuit was filed, Andrus said he was speaking with the Maine Judiciary Committee that afternoon about projects he wanted to complete.

“Irrespective of the lawsuit, we're still working right through today, to obtain resourcing that will allow us to provide a superlative service to indigent defendants,” Andrus said.

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