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I See a Bad Moon Rising Over Maine’s Indigent Defense System.

I See a Bad Moon Rising Over Maine’s Indigent Defense System.

Posted by Edmund R. Folsom, Esq.

August 30, 2021

Bad things are afoot in the realm of indigent defense in Maine.  A lot of damage has been done, and it looks like the repercussions have only begun to hit. Changes that the Maine Commission on Indigent Legal Services (MCILS) implemented, in an effort to increase accountability, have added layers of what is commonly referred to as “paperwork” to the jobs of lawyers who represent the indigent. While this “paperwork” adds more time to the job, the lawyers don’t get paid to do it. Combined with the relatively low pay and other aggravation that comes with the work, the extra burden was enough of a final-straw to cause a bunch of lawyers to walk away earlier this year.

In Southern Maine, some very high-volume indigent defense lawyers have left the field for other work. This puts pressure on the remaining lawyers, as a smaller pool of lawyers is left to take the cases other lawyers have withdrawn from on their way out the door, along with all the extra new cases coming into the system.

Now, consider that criminal cases have become severely backlogged during the COVID-19 pandemic, as very few jury trials have been held. Pending felonies increased statewide by 23.1% and pending misdemeanors by 8.9%, between August 6, 2020 and August 6, 2021. In some counties, the picture is much worse. Pending felonies increased 75% in Penobscot, 60.2% in Waldo, 45% in Piscataquis, and 32.8% in Aroostook County.

While the Judicial Branch reported a 30.1% decrease in criminal case filings in FY 2020, MCILS actually experienced a 0.7% increase in its caseload. In FY 2021, the MCILS and the lawyers accepting work from it took in 28,783 cases. Based on projections from July 2021 (FY 2022) numbers, the MCILS’s executive director anticipates a 14% increase to 31,000 cases in FY 2022.

As the MCILS’s case numbers increase and fewer attorneys are left to handle them, due to the attrition that has already occurred, the Courts are at some point going to ramp up docket calls and jury trials to clear out the backlog. That will put even more pressure on the lawyers doing MCILS work, as they get called into multiple courts in multiple counties at once, by judges who all expect them to be prepared to go, go, go, on any and all of their cases, right then and there.  All of this is pressuring more attorneys to stop accepting new MCILS cases, in what the MCILS’s executive director refers to as the “second wave of attrition.”  And every attorney who stops accepting MCILS cases creates additional pressure on the ones who remain to pick up the ever-increasing caseload.

Now let’s turn to the damage that’s been done to morale. In 2019, the Sixth Amendment Center issued a report highly critical of Maine’s indigent defense system. This report was further impetus for the ongoing efforts of public defender’s office promoters to push for a PD office in Maine. And so, they pushed.

Some of the hardest of the hard-core PD promoters are commissioners on the MCILS itself. In their effort to secure their dream of a public defender’s office (which for some reason they prefer to call a public defender office), they amplified every negative aspect of the existing system they could amplify. The biggest and loudest amplification of negatives was whipped on the lawyers who accept MCILS work. These were the ones to blame – much safer for the pro-PD crowd to blame this relatively powerless bunch than to blame the branches of Maine State government that set up, ran and seemed pleased enough with the Sixth Amendment-deficient system (and its predecessor variations) criticized by the Sixth Amendment Center, for years and years and years. The ranks of the lawyers who do MCILS work were portrayed as rife with lazy, inadequately-trained, incompetent bottom-feeders, selling their indigent clients short while they milk the only corner of the legal field that will have them. If only we had a public defender’s (or public defender) office – Why, that would clean it all up.  And to top it off, the lawyers were criticized most harshly and treated most dismissively by the pro-PD commissioners on the MCILS itself!

Well, the Legislature has not given the pro-PD crowd their public defender office. In that effort, the pro-PD crowd has so far failed. But their campaign to damage the reputation of lawyers who do MCILS work, in hopes of kicking them to the curb for a PD Office, was much more successful. And, coming from MCILS commissioners and all, the lawyer denigration part of their campaign was also wildly successful in gutting the morale of the very lawyers the system now relies on to satisfy Maine’s Sixth Amendment obligations — at the very moment the system needs them to bear an even heavier load.

Check out the lawyers’ comments on the recent MCILS survey, here, between pages 34 and 86.  By the looks of it, we might be about to reap the ugliness that has been sown.