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Indigent Defense In Maine – Will a Public Defender’s Office Save the Day?

Indigent Defense In Maine – Will a Public Defender’s Office Save the Day?

Posted November 20, 2019

Edmund R. Folsom, Esq.


It looks like pressure is building for a serious overhaul of Maine’s indigent defense system. The Maine Commission on Indigent Legal Services (MCILS) held a public hearing in Augusta yesterday. The wheels are now turning in earnest in response to the April 2019 report from the Sixth Amendment Center, commissioned by the Maine Legislature, critical of Maine’s indigent criminal defense system. News reports show the focus of the MCILS hearing was much more on the constitutional adequacy of the current system than on attorney over-billing issues that have recently drawn media attention. I expect the spotlight will swing to billing/cost issues when matters move back into the legislative realm.  Will we get a pilot public defender’s office in Cumberland County – with state-paid public defenders, office space, staff and investigators – as recommended in the Sixth Amendment Center’s report? Will we get an appellate-level public defender’s office statewide, as also recommended, that will train private attorneys providing indigent defense outside the public defender’s office? At this point, we are the only state in the U.S. that has no form of public defender’s office in place.  It must only be a matter of time before we join the ranks of the others.

But a real public defender’s office is hardly a panacea. Much of the push to create the MCILS 10 or so years ago, and for a continuing overhaul of the system today, stems from a belief that indigent defendants get seriously, constitutionally flawed representation in Maine. But listen… Don’t you occasionally hear remarks in popular culture speaking ill of public defender’s offices, as in, “I don’t want a public defender handling my case!”?  In fact, the ACLU has sued the states of New York, Montana, Washington, Pennsylvania, Idaho, Missouri, Nevada, California and Utah over the inadequacy of their indigent defense systems.  Do you know what all those states have in common, that Maine doesn’t share?  They all have public defender’s offices; which happen to only be as good as funding and the competence of their players allow.

I have never thought the level of indigent representation in Maine is poor. In fact, there are clear benefits to the existing system.  In my 35 years in practice, I have seen Maine’s exclusively private attorney, indigent defense system bring to bloom, and benefit from the skills of, many truly fine lawyers — the kind who won’t all be packing it in to go work for the P.D.’s Office, trust me.  How will new talent be brought along, as the old ages out, for those indigent defense matters (and there will be many) that the public defender’s office cannot handle? Oh, you poetic souls, will your system stomp those green shoots into dust?  As with any other endeavor, Maine’s lawyer world has its stars, its competent non-stars, and its duds. That will always be the case. I would like to have the best doctor in the world, but reality causes me primarily to hope for competence. To some extent, I fear the advocates of a public defender system are like those socialists who will never go away. Thank you for ceaselessly pointing out the flawed reality — every blemish and wart — of our existing economic system. You might even have convinced me it’s so bad that the only thing worse is the reality of your idealized system.  A Maine public defender system might be very good, or it might be so bad that it joins ranks with those that have drawn an ACLU lawsuit.  I’m pretty sure we are going to see some form of a Maine public defender’s office fairly soon. What kind will reality make it?

Related Post:  Sixth Amendment Center Reports on Maine’s Indigent Defense System.