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Indigent Defense In Maine — How Special Are We?

Indigent Defense In Maine — How Special Are We?

Posted by Edmund R. Folsom, Esq.

February 21, 2021

The Indigent Defense Debate Heats up Again.

Things are heating up again on Maine’s indigent defense front. The Legislature’s Judiciary Committee held a hearing on February 17, 2021, receiving testimony from a number of people on the direction things should take from here.

Back in 2009, the Legislature formed the Maine Commission on Indigent Legal Services (MCILS) which began operating in July of 2010.  The Formation of the MCILS removed the responsibility for paying court-appointed counsel fees from the Judicial Branch and its budget. This in turn ended the practice of judges combing over attorney bills, nicking the time submitted for approval and approving a final amount for payment.  That was the established practice when I started, in 1984. The hourly rate back then was $20.00, and judges routinely nicked-down the hours submitted when they thought a task should have been done in, say, .1 hours instead of .2.  There were then, as there are now, caps on total fees per case, based on case type/class of crime. To get paid for any excess over the cap, the lawyer needed to write a letter to the judge explaining why the case required so much time.

Maine’s Court Appointment System since 1984 (What do I know?)

I’ll weave-in my own “lived experience” with court-appointed work here.  Having watched the Judiciary Committee’s recent proceedings, I realize how important it is for readers to know the speaker’s personal experience with the topic at hand.  Without that, a reader might dismiss me as someone with little inside experience.  My perspective might have been formed from a perch atop a silk-stocking firm on the civil side of the law, for instance.  So, here goes…

In the fall of 1984, when I took my first law job as an associate with a two-lawyer general practice firm in Waterville, new attorneys who put their name on the list to take court-appointed cases were practically fresh meat. In some parts of the state, judges had to remind established lawyers of their professional duty to take assigned cases.  Established lawyers didn’t care to take them at $20.00/hr., with caps, but the courts couldn’t find anyone else around who did want them.  Especially in rural areas like Washington County, lawyers with little experience handling criminal cases, and even less desire to handle them, might find themselves appointed to serious felonies because they were the only possibility in town.

I put my name on the court-appointed lists in Waterville and Augusta, because the guys I worked for saw it as a great way for me to get courtroom experience and because the only interest I ever had in the law was in criminal law.  It was only a matter of weeks, definitely not more than months, before I was assigned a Class A gross sexual misconduct case, followed soon thereafter by a string of others.  In Kennebec County at that time child sex cases were the new wave in prosecution, and some enormous sentences were being handed down.

Not long before I received that first gross sexual assault assignment, I had attended what I think was the first-ever Bridging the Gap program.  Bridging the Gap was a program all the new lawyers were required to participate in for admission to the Maine Bar.  I was feeling a little under-experienced to adequately defend my new gross sexual assault client all by myself, when something I’d been told at Bridging the Gap came to mind.  We had been told that if we felt we were in over our heads we should seek help from a more experienced attorney, and if we were appointed to a criminal case that was beyond our competence we should at least ask the court to appoint a more experienced attorney as co-counsel.

I went to Justice Brody, in Kennebec County Superior Court, and explained that I had just been appointed to represent my client on a Class A gross sexual misconduct charge, had no experience with anything like it, had just graduated from law school, thought I might be in over my head, had just attended Bridging the Gap where I was told to ask the court to appoint experienced co-counsel if I thought I was handling a matter beyond my competence, and wondered if he would appoint experienced co-counsel to assist.  His reply (as accurately as my long-ago memory allows) was, “Do you want the case or not?”  Still, at the end of the discussion, Justice Brody appointed the lawyer I had requested as co-counsel. But I came away with the clear impression that my newbie’s request should remain extraordinary if not singular.

That case was ultimately resolved by a plea agreement, but by the time my 2 ½ years in Waterville were done, I had gotten an acquittal in a Class A rape case, court-appointed, alone, in a jury trial presided-over by that very same Superior Court Justice. That’s how it used to be, as any of my contemporaries can attest.  Now I know that my representation in that case fell well short of Sixth Amendment requirements.  I had no specialized training in defending a rape charge, no supervision, had never tried a rape case involving an adult victim before, and was grossly underpaid at $20.00/hr. Still, can we be certain that if a real public defender from a real public defender’s office had represented my client he’d have been acquitted?  What if that public defender’s office had been funded comparably to the assigned counsel system?  Is it possible it might have been better for the State to bring me and other court-appointed counsel up to a Sixth Amendment level of sufficiency?

After 2 ½ years in Waterville, I spend roughly the next 8 years as a prosecutor in the Cumberland County D.A.’s Office, in Portland, first as an Assistant D.A. and then for the last 2 ½ years as Deputy D.A. Most of the cases we handled in Cumberland County Superior Court involved defendants represented by court-appointed counsel. During that time the structure of the court-appointment counsel system remained the same – lawyers put their name on the court appointment list and the Court assigned cases to the lawyers on the list.  In 1987, the hourly pay rate rose to $40.00.

One of the more formidable, tenacious court-appointed lawyers I dealt with during my first 4 years in the Cumberland County D.A.’s Office was Stephanie Anderson.  She was good enough at what she did to earn an acquittal in a murder case against the A.G.’s Office in that time frame. Stephanie had arrived back in Portland after a stint in the Brooklyn, New York, D.A.’s Office, straight out of law school.  For a few years, she handled loads of heavy-duty court-appointed criminal cases out of her Portland office. In 1990, she won the race for Cumberland County D.A. and became my boss. I doubt very seriously that Stephanie Anderson would have signed-on with a public defender’s office. There were other formidable lawyers doing court-appointed work in Portland in those days, too, including at least one who heard “not guilty” verdicts pronounced on his client’s murder charges on multiple occasions. Most, if not all are lone-wolf types, highly unlikely to ever sign-on with a public defender’s office, but they have always answered the call to help out less experienced attorneys doing court-appointed work.

By 1995 I had left the D.A.’s office and put my name back on the court-appointed list. I even somehow managed to sneak onto the CJA list for case assignments in federal court. There were lots of attorneys on the state court list for appointments in Portland then. Many of them were really, really good at it. For the most part, financial screeners were in charge of who got what cases. The Superior Court screener had his favorite lawyers for case assignments, and I was definitely not among them. One day, while I was doing lawyer-of-the-day duties on video from the Cumberland County Jail, Judge Goranites appointed me to a murder case at the client’s initial appearance. I was lucky to get that case, especially given how much there was to work with, but it nearly ate me alive in late 1996 when, without co-counsel or any other assistance, I tried it twice – first in October and again in December – each time resulting in a hung jury.  Shortly after the second mistrial, the A.G.’s Office dismissed the indictment.  My client was released from his Harnish, no-bail hold and took a bus back to Oklahoma City. I was paid $40.00/hr. for most, but not quite all, of the time I submitted on the two vouchers. My total take for that defense, including for the better part of 2 weeks in trial, was just about $19,000.00.

There is no way I would have left the D.A.’s Office and found myself in a public defender’s office, but in hindsight the defense my client received clearly fell below Sixth Amendment standards. It was my first murder case, I had no co-counsel, no specialized training in defending homicides, no formal assistance of any kind, and the compensation was abysmal. Should we conclude that my client should have been represented by a real public defender from a real public defender’s office, even one funded comparably to the court-appointed counsel system, or might it have been better for the State to spend the resources to bring me up to a level of Sixth Amendment adequacy?

The system of court appointments stayed roughly the same until 2010 when the MCILS started up. I stopped taking court appointments in 1999, then took some on again briefly starting in 2012, but haven’t taken them for several years now. I have, however, presented at continuing legal education seminars for MCILS- rostered attorneys several times in recent years. That’s my vantage point for observing and commenting on Maine’s indigent defense system. There are many rostered attorneys who have become really good at what they do under the current system. As in any professional endeavor, there are a few stars; most are competent stalwarts, maybe with occasional flashes of brilliance, maybe occasionally falling short; and there are some who always struggle.

The MCILS is Born

The MCILS was born of conflicting concerns. For one thing, the Judicial Branch acknowledged it was conflicted reviewing attorney vouchers for appropriate payment and paying those vouchers out of its own budget. They wanted to be rid of the problem.  Another camp was convinced that Maine’s court-appointed counsel system utterly failed in its obligation under the Sixth Amendment to the U.S. Constitution to provide effective assistance of counsel to indigent criminal defendants in risk-of-jail cases. This camp primarily wanted a better system.  Yet another camp was angling for a way to cut the cost of meeting the constitutional requirement. This camp primarily wanted to save money.  It was no problem satisfying the Judicial Branch, ridding it of its problem. The rest has been more difficult.

From the beginning, some have pushed hard for a public defender system, involving an actual public defender’s office employing attorneys as public defenders along with investigators and support staff. Others have advocated continuing with an improved version of the existing system:  assigning cases to private sector attorneys paid by the hour but instituting training and experience requirements for admission and continuing presence on panels for specific case types, with ongoing performance requirements measured by objective standards. Others have advocated setting and policing heightened standards, but entering into contracts with attorneys to handle all or a certain number of cases in a certain geographic area for a set, bulk rate.

At its inception the MCILS created standards for admission to its various panels.  For the most part, it has paid assigned counsel at an hourly rate.  Another small group of attorneys have contracted to handle all the indigent criminal cases in a limited geographic area for a bulk rate. Hourly attorneys have submitted their vouchers to the MCILS for payment.  The MCILS, until recently, had a staff that consisted solely of an executive director, an assistant to the executive director, and a finance person. The executive director and assistant director have reviewed and paid all vouchers submitted by counsel, in addition to performing all training, oversight and standards-enforcement duties.  Throughout the MCILS’s existence there have been continuing pushes to change its form. Some have continued pushing for a system based more on bulk contracts, to control rising costs. Others have continued to push for a move to a public defender’s office.

The MCILS Falls from Grace – The Sixth Amendment Center and OPEGA Reports.

In 2018, the Maine Legislative Council commissioned the Massachusetts-based Sixth Amendment Center to evaluate Maine’s court-appointed counsel system and to issue recommendations. In early 2019, the Sixth Amendment Center issued its report, finding that the MCILS system falls short of Sixth Amendment requirements. Apart from the shortcomings it identified in the delivery of legal services to indigent defendants, the report pointed out problems with financial oversight that resulted in some enormous, unexplained attorney billings.  For instance, the top-billing attorney in 2018 billed an average of more than 88 hours per week for each of 52 weeks, pulling in $275,612 in MCILS fees at $60.00/hr.  This latter issue was subsequently investigated by the Legislature’s Office of Program Evaluation & Government Accountability (OPEGA) who issue a report in November of 2020.

The OPEGA report confirmed serious deficiencies in MCILS monitoring of attorney billing but concluded there was inadequate information to establish malfeasance. The report was very critical of MCILS fiscal oversight.  For instance, the MCILS tolerated attorney record-keeping and billing practices such as multiple attorneys in the same practice billing their time under a single attorney’s name. This particular practice was offered to explain what otherwise would be an impossible number of hours for a single attorney to bill legitimately.  A short time after the OPEGA report was issued, Director John Pelletier stepped down from the post he had held since the MCILS began operations. He has since been replaced by an interim director, Justin Andrus, an attorney with extensive experience doing court-appointed work for the MCILS.

The Sixth Amendment Center’s report made seven major recommendations, including the establishment of a statewide appellate public defender’s office, staffed by state-employed public defenders responsible for providing attorney support and training for ongoing certification requirements.  In addition, the report recommends establishing a trial-level public defender’s office in Cumberland County, also staffed by state-employed public defenders, and it recommends improved fiscal oversight for attorneys paid by the MCILS, an increase in MCILS staff, more rigorous attorney certification requirements and a rate of compensation for attorneys outside the public defender’s office that would cover attorney overhead plus $100.00/hr. for work performed.

What to do About the Sixth Amendment Center’s Report

Because of a series of unfortunate events that delayed the Legislature from deciding what to do about the Sixth Amendment Center’s report, the Legislature has only just now gotten underway with the process. This past Wednesday, February 17, 2021, the Judiciary Committee held a hearing, as mentioned above.

It’s important to know that the MCILS has a broader mandate than what the Sixth Amendment requires.  Indigent parents whose children are the subject of child protection and termination of parental rights proceedings are also entitled to court-appointed counsel under Maine law, as are indigent people subject to involuntary commitment proceedings.  The Sixth Amendment does not require the state to provide counsel for the indigent in either circumstance.  In these types of cases just as with criminal cases, back before the MCILS existed attorneys used to put their names on a list to accept appointments. The court appointed an attorney from that list, and the attorney submitted a payment voucher to the court for judicial review and payment at the end of the case.  Since the advent of the MCILS, attorneys have been required to meet MCILS criteria for placement on child protective and involuntary commitment panels. They also submit their vouchers to the MCILS for payment.

Payments to attorneys representing indigent parents in child protective cases consume a significant part of the MCILS’s budget.  Because the setting of standards and attorney oversight for appointed counsel in child protective cases are handled by the MCILS the same way standards and oversight are handled for appointed counsel in indigent criminal defense cases, any deficiency in the quality of representation of indigent criminal defendants inherent in the MCILS system itself must also exist as to the quality of representation of indigent parents threatened with having their children taken away.  Because child protective appointments are a significant share of what the MCILS deals with, any remedy for MCILS deficiencies must address deficiencies on the child protective side too.  In other words, the State can hardly let stand a system of deficient representation for indigent people at risk of having their children wrongfully taken away, any more than it can let stand a system of deficient representation that places people at risk of wrongful criminal conviction.  At the February 17 Judiciary Committee hearing, someone commented that nothing is worse than the state depriving individuals of their liberty through wrongful conviction.  I disagree. I would gladly have taken a wrongfully-imposed stretch in the can to avoid having my children taken away.

Bulk-Rate Contracts Seem to be off the Table

At this point, there appears to be no serious support for bulk-rate contracts.  The Sixth Amendment Center’s report pointed out their many flaws, and that seems to have killed-off any enthusiasm for the arrangement. The debate is now entirely whether the existing system of providing indigent defense exclusively by use of private practice attorneys can be made adequate for Sixth Amendment purposes; if so, whether it should be continued with necessary modifications in place (taking fiscal considerations into account); or whether it is preferable or even necessary to institute a public defender’s office along the lines proposed by the Sixth Amendment Center (again, taking fiscal considerations into account).

Public Defender’s Office Vs. Modification of the Current System — The Judiciary Committee Hearing

The Sixth Amendment Center’s David Carroll testified before the Judiciary Committee in support of the recommendations in his organization’s report.  Mr. Carroll allows that the current system might be brought into Sixth Amendment compliance relying solely on use of private counsel. However, he believes it would be very expensive to pull that off.  Remember, the Sixth Amendment Center proposes a statewide appellate public defender to train the trial-level public defenders.  But under the proposal, most of Maine would still not be covered by a trial-level public defender’s office.  The new appellate-level public defender’s office would provide training to those private attorneys who would continue to work for the MCILS at an increased rate of pay in the majority of Maine’s courts. For this arrangement to meet Sixth Amendment standards, the private-sector attorneys would need to meet standards that would overcome the current training and performance deficiencies the Center has identified.  But if all those attorneys can be brought up to snuff by a small group of trainers, is it really necessary to establish a public defender’s office at all — at least a trial-level public defender’s office?  And if all the private attorneys can’t be brought up to Sixth Amendment standards, establishing a pilot trial-level public defender’s office it isn’t going to solve Maine’s problems anyway.  Even if such an office were established, most of the indigent defense work would still be performed by lawyers who would fail to meet Sixth Amendment standards. Then again, what makes us think the work done by public defenders in a pilot, trial-level PD’s office would meet Sixth Amendment standards?  This last question brings me to the testimony of the ACLU’s Zach Heiden.

Attorney Heiden is the ACLU’s chief counsel for Maine. He told the Judiciary Committee that the ACLU doesn’t like to sue if it can achieve its goals by other means.  But in this case, he thinks the ACLU might be left with no choice, given Maine’s ongoing failure to respond to the deficiencies in its indigent defense system.  He rattled-off a number of states where the ACLU has brought suit for deficiencies in their indigent defense systems in recent years:  Montana in 2002; Washington in 2004; New York and Michigan in 2007; Pennsylvania in 2012; Idaho in 2015; Nevada and Indiana in 2017; and Missouri in 2020.  He didn’t even mention Fresno County, California, where the ACLU settled yet another lawsuit just last year.

Do you know what these states have in common, aside from having been sued by the ACLU?  Clue:  Maine is the only state that does not have a public defender’s office.  All of these states have a public defender’s office.  Yet they still got sued by the ACLU for failing to provide effective representation to indigent defendants!  That’s fully 20% of all the states in the United States, sued by the ACLU in the past 18 years, and all of them with a public defender’s office!  Maybe we should be wondering why public defenders get such a bad rap in so many other places and whether we should be quick to believe that setting up a public defender’s office in Maine will cure our Sixth Amendment problems. And, by the way, attorney Heiden didn’t tell the Judiciary Committee we need to set up a public defender’s office to solve our problems. Why would he?  The organization he works for keeps busy all over the U.S., suing states with public defender’s offices because of deficiencies in their public defender systems. Heiden only said we need to solve the problems identified in the Sixth Amendment Center’s report. It’s up to the State of Maine how we do it.

MCILS Commissioner Robert Cummins testified at the Judiciary Committee hearing strongly in favor of setting up a pilot public defender’s office in Kennebec County. In fact, he even offered to set it up and run it himself, pro bono, at age 88.  Attorney Cummins has extensive experience with the public defender system in Illinois, a place where a public defender’s office has existed for a long, long time.  In response to questioning from a Committee member, attorney Cummins testified that he has no doubt that people are sitting in prison in Maine, convicted of crimes they did not commit. This Q and A seemed designed to leave the impression that any such wrongful convictions are due to our deficient court-appointed counsel system.  Attorney Cummins also said he has been involved in exonerations, freeing innocent people from prison.  I just wish he had been asked if any of the people he helped exonerate were convicted while represented by indigent defense counsel in a state with a public defender’s office.

MCILS Commissioner Ron Schneider spoke strongly in favor of establishing a public defender system, NOW!!!  He was intensely dismissive of anyone who doesn’t share his view.  He told the Judiciary Committee he has no faith in the public on the issue.  He described the issue as an “unpopular cause” and importuned the Committee to just “move forward” and “do the right thing” by funding a public defender’s office.  In a rhetorical tip of his hat to the ad hominem, he urged Judiciary Committee members to “leave behind” those who oppose a public defender’s office, saying they only oppose it for their own gain, not because it’s right.  He told Committee members to stop worrying about the lawyers who make a living off the current system, because the system isn’t for them but for the people who need representation.

As someone with no personal financial stake (other than as a taxpayer) in whether we modify and improve our current system or establish a public defender’s office, I take issue with Commissioner Schneider’s comments and remain unconvinced that a public defender’s office is a good idea for Maine.  Again, I point to the string of states that have been sued by the ACLU for failing to comply with the Sixth Amendment despite having a public defender’s office.  Commissioner Schneider remarked that Maine just “isn’t that special” to be able to continue as the only state in the U.S. without a public defender’s office.  But he failed to address how Maine is so much more special than Montana, Washington, New York, Michigan, Pennsylvania, Idaho, Nevada, Indiana, Missouri and California that any public defender’s office we might establish will protect us from Sixth Amendment deficiencies and an ACLU lawsuit.

Here’s what Emma Andersson, senior staff attorney with the ACLU’s Criminal Law Reform Project had to say about public defender systems, in general, in the wake of the California lawsuit’s settlement:

“The crisis in California that led to this lawsuit is not an anomaly. Too many public defenders across the country have to juggle hundreds of cases at once, forcing them to cut corners in the investigation, case preparation, and legal research necessary to ensure that every client benefits from the presumption of innocence and the right to counsel.”

And then there’s burnout among public defenders, the dispiriting feeling of having plateaued in an organization, with no path to advancement, that plagues public defenders trapped as lifers, going through the motions to survive, etc.  In a very real sense, salaried public defenders have a lot in common with lawyers doing indigent defense work on a flat-fee contract for bulk-rate defense. In both circumstances, compensation does not increase with increased work performed. Achieving work/life balance eventually pulls in the direction of cutting back on work, especially when the pay remains the same.

And even if establishing a public defender’s office would bring us up to Sixth Amendment standards on the indigent criminal defense side of the MCILS mandate, what would we do about the child protective side?  That side needs to be addressed, and a public defender’s office won’t address it.  Can the MCILS institute training, standards and oversight that will ensure that indigent parents receive an effective defense in those proceedings?  If so, why can’t the MCILS do the same thing on the criminal defense side?  If not, will we need to start a separate defender’s office for child protective defense?  After all, how will we be able to tolerate a system that allows indigent parents to have their children wrongfully taken from them, standing next to a public defender’s system that manages to guarantee that criminal defendants can no longer be wrongfully convicted?

Part of the Attitude Toward the Hired Help is a Class Thing, But the Hired Help are Cutting Their Own Throats

Part of what’s going on in the debate over Maine’s court-appointed counsel system has to do with the hired help being held in low esteem.  One MCILS commissioner has clearly stated his belief that the hired help have nothing of value to say on the topic and should be ignored out of hand, save for any willing to be put out of business by a public defender’s office. That is simply not the way one views one’s moral, ethical and professional equals, now is it?  It’s a class thing.  Law is a hierarchical profession.  Lawyers who subsist on a shoestring, grubbing for $60.00-per-hour court appointments as their main fare simply invite the contempt of their betters.  Every so often, the odd hired-hand might receive a lordly pat on the head for a job well done, but much of the general public and many calling the shots unfortunately view the lawyers who make their living this way as lowly bottom-feeders. The cause may be noble (especially in the abstract), but the hired help, not so much.  I mean, really… what respectable lawyer works for $60.00/hr., without benefits, overhead costs included?  Unfortunately, being held in low regard is a downward cycle.  Each insult absorbed earns a further diminution of regard.

At the same time, the hired help don’t do themselves any favors. The billing practices first disclosed in the Sixth Amendment Center’s report and later confirmed by the OPEGA report raise an appalling appearance of impropriety.  How could anyone think the public wouldn’t be outraged by a lawyer billing the State of Maine more than $275,000 (as only one example) in a single year at the rate of $60.00/hr.?  And even now, in the midst of a move to institute a public defender’s office, MCILS’s billing problems continue. Interim Director Andrus recently reported that the MCILS has issued 99 notices in the past few weeks requiring attorneys to explain why they billed more than 12 hours in a single day. Yet he has only received replies to 21 of those notices — a worse response rate than the one the OPEGA report identified as problematic last November!

Smarten up, people!  What the hell is wrong with you?  You’re not entitled to anything, and acting like you are is not going over well.  Heads need to roll and butts need to be kicked off rosters if it doesn’t stop. Go Justin Andrus — roll the heads, kick the butts and take the names, because a certain segment of the hired help seems hell-bent on cutting the throats of the rest along with their own. Meanwhile, they’re helping to kill-off a system, developed over decades, that  has done a remarkable job cultivated indigent defense talent on the cheap for the State of Maine.

If trial-level public defender’s offices are instituted in Maine, wherever they operate they will dry-up the work that sustains the lawyers in the current system. Some people cheer for the day that occurs. But if it does occur, it will mean many talented lawyers won’t ever be able to enter the field, to develop and apply that talent. As indigent defense moves from mom-and-pop to big-box-industrial, there’s a price to be paid for the rigidity.  But is it a necessary, or even a wise price to pay? If we make the leap, there’s no going back. We’d better hope we are truly more special than Montana, Washington, New York, Michigan, Pennsylvania, Idaho, Nevada, Indiana, Missouri, California, etc.