Here’s a story about my recent adventure at the Maine Legislature.  It was my second attempt to secure a legislative fix for problems that I have encountered practicing criminal defense law in York County.   My first ill-fated attempt was several years ago.  The sitting D.A. at that time- who is not the current D.A.- was running for a higher political office.  He called every attorney he could think of, including most if not all members of the local criminal defense bar, to personally solicit campaign contributions.  I have been told the calls came day and night.  I received a call in the middle of the day one day and picked up the phone thinking it must be about a pending case, only to discover that the D.A. had called to ask for the maximum campaign contribution, or if that was too much, at least something to help his efforts.

Although the D.A. certainly did not hint that any favors would flow to those who coughed up the maximum contribution or that any favors would be withheld for failure to make a contribution (and I don’t believe he had any such thing in mind), a number of attorneys I spoke to felt uncomfortably pressured by the requests.  This made the practice fairly creepy and gave it a certain appearance of impropriety.  But then again, who wanted to go on record and make a stink about it, on the off-chance there might be a price to be paid for that?   As I looked into the legality and ethics of the practice, I found that Maine’s political ethics laws raised no legal bar to it.  Maine law bars police officers from soliciting money from the public, but it did not bar a sitting D.A. from directly soliciting money from defense attorneys who handle cases against his or her office.   I decided to try to change that, by seeking an amendment to the governmental ethics laws.  I found a legislator to submit a bill for me, but it was killed in committee.  From what I could determine, the whole affair was viewed as an isolated incident that didn’t merit remedial legislation.  By the time the bill was submitted, the matter had blown over and the D.A. had by then lost his nomination bid for higher office.   And the particular language of the particular proposed bill might not have represented the most artful way to deal with whatever problem might have existed anyway… better to just stay with the status quo.

At this point, I probably should only be sorry to have bothered with the effort in the first place, because I think all I accomplished was to alienate the affections of a particular politician.   And besides, politicians need lots of money and should be allowed to hit up anyone who’s got some.   All this conflict of interests stuff is overblown anyway.   I’ve now evolved and even think Rod Blagojevich got a raw deal.  After all, a man’s gotta do what a man’s gotta do.   Still, though, I didn’t learn enough not to take on my more recent failed legislative adventure.

It all began about a year ago, when I ran into a problem with the way the York County Jail construes the statute controlling day-for-day credit for time a person is detained in jail, unable to make bail, before sentence is imposed.  The statute says credit is to be given toward the person’s total sentence for the time the person was “detained for the conduct for which the sentence is imposed.”  The York County Jail applies that standard in a way I have never encountered anywhere else in 28+ years of practicing criminal law.  For example, I was involved in a case in which the defendant’s girlfriend reported to police that the defendant had assaulted her the previous day and had prevented her from calling the police.  The girlfriend told police that the defendant was, at the time of her report, at her residence, and that he had a handgun.  The defendant had previously been convicted of a felony.  Police went to the residence and found the defendant in possession of a handgun.  They took him to the York County Jail and booked him in on the charge of possession of a firearm by a felon.  He was not able to make bail, so he remained in jail from then on.   Weeks after his arrest, the D.A lodged a charging instrument containing charges of possession of firearm by a felon, assault, and obstructing the report of a crime.  Four months after his arrest, he reached a plea agreement, under which he pled guilty to all three of these charges and received a split sentence involving 9 months to be served concurrently on each count.

Everywhere else in the State, when a person receives a sentence in those circumstances, credit is given toward the total sentence for the 4 months the person was in jail awaiting sentence.  This leaves a balance of 5 months to be served on all counts, and the person is released from incarceration on all three sentences on the same day.   That is what the D.A., the defense attorney, and the judge expected to occur in this case as well.  Instead, the jail informed the defendant that he had 9 months left to serve on the assault and obstructing the report of a crime charges.   The jail reasoned that the defendant was entitled to day-for-day credit for the time he was detained on the “conduct for which the sentence [was] imposed.”    As to the 9-month sentence for possession of a firearm by a felon, the defendant had been detained for 4 months, so he had 5 months left to serve.  As to the assault and obstructing the report of a crime sentences, the defendant had not been detained for that conduct, so after he finished the 9-month sentence for the possession of a firearm charge, he would remain in jail for an additional 4 months until his concurrent 9-month sentences were finished.  Because the defense attorney on the case was an attorney I worked with at the time, I was asked to work on the problem.  I called Diane Sleek, the Assistant Attorney General who advises the jails on the application of this statute.   I had never seen the language of the statute construed in this extremely narrow way, ever, in over a quarter century of criminal law practice.  But Diane Sleek told me that she understood the York County Jail’s interpretation to be correct.  She said she would consult with Charlie Leadbetter, a now-retired Assistant Attorney General who has long been regarded as Maine’s guru on such issues.  A day or so later, A.A.G. Sleek told me she had consulted Charlie Leadbetter and he agreed with her interpretation.

To remedy the problem as quickly as possible and to carry out the intentions of defense counsel and the D.A., the defense attorney filed a motion to correct the sentence, based on an asserted “mistake of fact” at the time of sentence.  The motion asserted that it had mistakenly been understood that the Defendant had pretrial detention time on the misdemeanors charges equal to his detention time on the felony count.  The D.A. did not object to the motion, and the judge changed the misdemeanor sentences to 5 months, concurrent with the 9-month felony sentence, so the defendant would not be held in jail on the misdemeanors after his release date for the felony.

Around this time, another York County attorney reported that he had a client who was sentenced to serve several days, with credit for “time served,” on a reduced charge.  All parties anticipated that the defendant would be released immediately, but the jail continued to hold the defendant in jail over the weekend, under the theory that the defendant had been detained only for the conduct involved in the original charge, not the conduct alleged in the reduced charge.   This same attorney reported another case in which the jail refused to credit the 60 days the defendant had been held on Class A robbery and Class E theft charges toward a sentence of 60 days, with credit for “time served,” on a reduction to conspiracy to commit theft, Class E; and another case in which the jail refused to credit the 9 days the defendant had been detained on a domestic violence assault arrest toward a sentence of 9 days, credit for “time served,” on a reduced charge of disorderly conduct.  In both of these cases, the jail again maintained that the defendant had not been detained on the conduct for which the sentence was imposed.  In each case, the attorney was forced to return to court and seek a correction of the sentence for an asserted mistake of fact, and in each case the remedy was for the court to impose a sentence of unconditional discharge so the defendant could be immediately released, but only after the defendant continued to be held until the sentence could be changed.

Yet another attorney reported that he had a case in which his client was arrested for domestic violence assault, assault and violation of condition of release.  When the defendant was taken to court, her complaint charged only domestic violence assault.  After she was held for 2 weeks, she made bail.  Later, an indictment was brought against her for all three of the charges for which she had initially been arrested.   When the time for trial arrived, the attorney thought the client had a fairly solid defense to the domestic violence assault charge (the only conduct for which the jail would consider her to have been detained for 2 weeks) and somewhat of a defense on the assault charge, but no defense on the violation of condition of release charge.  If the defendant went to trial and was convicted of the assault or violation of condition of release charges, she would have to serve whatever jail sentence the court might give her, without any detention credit.  Or, she could take the offer the D.A. made, which would have required a plea to the defensible domestic violence assault but would not have resulted in her serving additional jail time.  I don’t know how the attorney resolved this problem.

Now let me attempt to frame the problem in the context of Zumba and prostitution, because that seems to get people’s attention.  Imagine a few twists in the facts of the prosecution against Mark Strong, for invasion of privacy and prostitution-related offenses.  Imagine that Mark Strong was initially arrested and booked into the York County Jail for invasion of privacy, only.   Then imagine that Mark Strong sat in jail for 60 days before he made bail.   After this, suppose an indictment issued against him, charging invasion of privacy and prostitution.   Suppose further, that he was convicted of all charges against him and that the judge sentenced him to serve 60 days in jail, concurrent on all counts.  On appeal, suppose the Law Court struck down all the invasion of privacy convictions (the pretrial dismissal of which really was upheld by the Law Court in Mark Strong’s actual case).   If, on remand, the trial court left the 60-day sentence in place on the remaining prostitution convictions, Strong would have to serve all of it.  He would receive no credit for the time he was detained on the invasion of privacy counts because the sentence was imposed on prostitution counts and that is not the conduct for which he was detained.   Stay with me for another twist.  Suppose instead that the Law Court upheld the convictions for invasion of privacy as well as for prostitution.  The York County Jail would say he must still serve 60 days on the prostitution counts anyway.   He would get credit for his 60 days of detention time, but only on the invasion of privacy counts, the conduct for which he was detained, not the prostitution counts, involving conduct for which he was not detained. In fact, if Mark Strong was initially arrested for invasion of privacy committed on a certain date or dates, and was later indicted for invasion of privacy committed on additional dates, the York County Jail’s interpretation would only allow him to receive detention credit on the invasion of privacy counts that reflect the date or dates implicated at the time of his arrest.   This, to me, is ridiculous.  So I sought legislation to make it clear that the term, “conduct for which the sentence is imposed” means all of the conduct that underlies all of the charges brought in the single case against the defendant.   The idea was to make sure that, regardless what county a person is sentenced in, the person will receive credit toward the total sentence for time detained pretrial, regardless what particular aspects of that conduct were “charged” by police or the D.A. at the time of arrest or initial appearance in court.

Having learned something from my last failed adventure in the legislative realm, this time I sought and received official backing for my proposal from the Maine Association of Criminal Defense Lawyers (MACDL).   MACDL’s chief legislative liaison found a legislator to draft and introduce a bill in my behalf.   When the time came, MACDL submitted written testimony in favor of the bill.  On March 8, 2013, I trekked to Augusta and testified at the public hearing.  The Maine Civil Liberties Union also spoke in favor of the bill that day.  Nobody spoke in opposition.   The committee members only had one question; whether the bill would have any effect on post-sentence good time calculations- it would not.   One week later, on March 15, 2013, I again trekked to Augusta to attend the work session for the bill.  This time, mid-coast District Attorney Geoffrey Rushlau was there.  He told me he was against the bill and that the Criminal Law Advisory Commission (CLAC) also opposed it.  Really…?  CLAC is a commission established by the Legislature to review criminal laws and rules, to suggest changes and to advise the Legislature on changes proposed by others.   Although I was curious to know why they opposed the bill, I knew at that point I could have saved myself the trip to Augusta.

When the work session for the bill began, the committee’s legal analyst began by summarizing the proceedings to that point.  He said Ed Folsom, an attorney whose “title,” if he had one, was unclear, had brought the bill forward, and that the MCLU had spoken in favor (no mention of endorsement by MACDL, unless I somehow missed it).   On the other hand, the bill was opposed by CLAC, because the existing statute reflects appropriate State policy on the awarding of pretrial detention credits and the proposed changes might carry unspecified unintended consequences.   Also, CLAC had opined in its written commentary to the committee that whatever problem existed was a “practice skills” problem among the attorneys and, perhaps, the judges involved.

During work sessions, the committee does not open the proceedings to public comment, but the committee members do sometimes solicit comments from those in attendance.  The committee entertained comments from both myself and D.A. Rushlau.  D.A. Rushlau agreed with CLAC.  If the bill were passed, there is a risk that a parade of horribles would follow, due to unspecified unintended consequences, the nature of which he could not begin to anticipate.   In his opinion, the particular jail at issue was guilty of outrageous behavior for which they should be sued.   Rushlau related that he had spoken to the committee’s legal analyst and had learned of an instance in which the jail failed to give a defendant credit for time detained on aggravated assault toward his sentence on a reduced charge of assault. This was the first I had heard of that particular case, but apparently the committee’s analyst and D.A. Rushlau were privy to  information I did not have.  While incidents such as that were outrageous, Ruslau said it was entirely appropriate for a jail not to award credit toward a sentence, for instance, in a situation where a person is sentenced on a charge that was added to a complaint after the person was held in jail for 10 days on another charge from the same incident.  This is as it should be and the statute shouldn’t be amended to change it.

In the end there was only one committee vote for “ought to pass.” All other committee members present voted “ought not to pass,” and there the bill died.   One committee member who voted “ought not to pass” offered that if a change was made to give people more detention credit, judges would just increase the sentence to take that into account anyway.  To that I say:  Well alright then; that settles it for me too.

I get it now.  At first, I thought there was a problem here that could appropriately be remedied by a simple amendment to the statute that would remove ambiguity and clearly, directly express the Legislature’s intent.   Once again, I should have known better, so I have now adopted the official line:  If there’s a problem, it’s a “practice skills” problem.   Move along, because there’s nothing to see here.  The next time I think I see a problem that I think might call for a legislative remedy, I’m not saying anything.   As the legal analyst for the Criminal Justice and Public Safety Committee pointed out, I don’t even have a title for crying out loud!  I understand.  Politics is politics.

4 Responses

  1. Carrie

    District Attorney Geoffrey Rushlau, I see he has a title. I have one, it is “Tax Payer of York County”. As an acting tax payer in York County I’m upset at the time and money spent on such an important matter just to see it squashed. I hope that this “adventure” fuels some sort of fire for you to go further and try again? Is that possible? I’m not the type to cry “unfair” often however this seems to be an unfair and “regular practice”. Not a “practice skills” problem.

    Politics as usual. I’m surprised that somebody didn’t just blame it all on Bush.

  2. Curtis

    I love law stuff and this part caught my eye. “All parties anticipated that the defendant would be released immediately, but the jail continued to hold the defendant in jail over the weekend, under the theory that the defendant had been detained only for the conduct involved in the original charge, not the conduct alleged in the reduced charge.” Doesn’t it bring up the question of false imprisonment or whatever Maine calls it being detained without cause. Every legal arrest and imprisonment has to have a legal outcome fines, more prison time, probation, plea deals, innocence and release etc. This individual was arrested legally and that arrest lead to imprisonment, court, and a plea to a lesser charge. All part of a legal process. It would seem to me that when the jail refuses to allow the time served on the original charge that ended up a plea deal to another charge, effectively eliminating the first charge, the jail in my opinion (and I think could be pushed to have legal support) effective imprisoned a man on a charge that they refuse to allow to ever be finished legally, or to have his day in court in, they deny him not just a speedy trial, but any trial. Habeas Corpus??? anyone??? The jail knows that the original charge was changed, that changing of the charge was part of the legal outcome that flows from the original arrest, imprisonment, court….blah blah blah legal process. The jail then must take ownership of that original charge when it doesn’t allow for it to continue to flow through a legal process, that original charge no longer existed. Yet when they refuse to acknowledge the change they effectively punish/ imprison for a crime that they know will never see a legal end too, since this individual according to the jail will never get a trial on his original charge. The courts are to decide the endings not the prisons. Smarter more knowledgable lawyers than me should be able to easily make a case for this. What do you think Mr. Folsom any leg to stand on?

  3. JB

    No snow days here in Georgia but I found time to read your blog nonetheless. Please note the posting time does not indicate that I have insomnia and I was looking for a cure. I was not. Interesting struggle and its efforts like your own (and probably only those types of efforts) that can lead to more effective results. March on!

  4. Ed Folsom

    The problem is that the statute does lend itself to the construction the York County Jail has applied. And, the A.G.’s Office backs that interpretation, even though no other jail in the State applies the statute that way. No lawyer is going to bring a suit on behalf of a person held in jail for an extra day when it is not at all clear that libility could be established, and if it could be established, damages would probably be a pittance that wouldn’t cover a fraction of litigation costs. No lawyer with a client who runs into this situation is going to let it persist, and let the client remain in custody to create a potential for greater damages. Instead, they will drag the case back to court for resentencing on ostensible mistake of fact grounds. If a situation were to arise like my hypothetical Mark Strong scenario, that situation would result in litigation of the statutory interpretation issue. But what if the Law Court ultimately sided with the York County Jail’s interpretation? Then, the only remedy for the unjust result would be to change the statutory language, wouldn’t it? Or, the statutory language could just be changed now, to clear up any ambiguity, express the appropriate legislative intent and cut through the clutter, couldn’t it? Answer: No, it could not.