Court Rules MCPDS Not Satisfying 6th Amendment re Appointed Counsel.
Posted by Ed Folsom, January 7, 2025
Finally, there’s significant movement afoot in the ACLU’s lawsuit alleging that indigent criminal defendants in Maine are being denied their 6th Amendment right to counsel. The ACLU originally filed the lawsuit on behalf of a class of indigent criminal defendants in July of 2022. The lawsuit named the Maine Commission on Indigent Legal Services (since renamed the Maine Commission on Public Defense Services) and its individual commissioners, acting as commissioners, as defendants. The ACLU claimed that the defendants were denying the plaintiffs their 6th Amendment right to counsel by providing them with counsel whose performance was deficient. More specifically, the ACLU alleged that the defendants are state actors who are violating a federal statute, 18 U.S.C. section 1983, by denying the plaintiffs their right to constitutionally adequate counsel under the 6th Amendment to the U.S. Constitution.
But as time and the lawsuit dragged on, a new problem arose. By March of 2024, the Maine Commission on Indigent Legal Services found itself unable to provide any attorney at all for a growing number of people who were entitled to appointed counsel. As a result, people waited for prolonged periods before an attorney was appointed to represent them, some while sitting in jail unable to make bail. In response to this new problem, the presiding Justice, Michaela Murphy, decided to split the class of plaintiffs into two sub-classes: 1) those who received appointed counsel but whose attorneys were allegedly inadequate, and 2) those for whom no attorney was appointed at all for part of their criminal proceedings.
Justice Murphy decided to hold separate trials for these two categories of plaintiffs, with trial for the sub-class who received no court-appointed attorney at all to occur first. The ACLU added defendants to the litigation and new counts to its complaint to address the newly-arisen sub-class. Matters dragged on. Matters got increasingly complicated. The problem of criminal defendants not receiving any court appointed counsel grew worse. According to a recent news account, as of January 3, 2025, there were more than 930 people without counsel.
But there was also a significant development in the case on January 3. That day, Justice Murphy issued an order on count one of the complaint, ruling that the Maine Commission on Public Defense Services (MCPDS) is in fact violating the 6th Amendment rights of the plaintiff sub-class who are entitled to a court appointed attorney when it fails to provide counsel to represent them continuously, from their initial court appearance onward.
What is the MCPDS’s theory that it is doing all that it needs to do under the 6th Amendment, given that people who are entitled to appointed counsel are going without counsel while their criminal cases are pending? As interpreted by the U.S. Supreme Court, the 6th Amendment right arises, or “attaches,” when the state initiates formal legal proceedings against a defendant. Once the right to counsel attaches, it applies during all “critical stages” of the legal proceedings. The MCPDS does not argue over when the right attaches under criminal proceedings in Maine. The MCPDS agrees that the right attaches at the person’s initial appearance in court. But the MCPDS and defendant commissioners argue that the 6th Amendment does not require them to provide counsel continuously, throughout the criminal proceedings, once the right has attached.
Understanding their position requires a little background in Maine criminal court procedure. In Maine, after the initial appearance, the court schedules the case for a dispositional conference which takes place months later. At the dispositional conference, the defendant and the prosecutor are required to try to resolve the case by plea agreement, with input from the presiding judge. In between the initial appearance and dispositional conference, the defendant must review the police reports and other discovery materials in preparation for the conference. If the defendant intends to file certain pretrial motions, court rules require that those motions must be served on the prosecutor prior to the dispositional conference. People who are not assigned counsel at or immediately following the initial appearance do not have an attorney to assist them in early-stage investigation, drafting of appropriate motions, preparation for the dispositional conference and plea negotiations, etc., during this time frame.
The MCPDS assigns lawyers-of-the-day to represent people who do not have counsel at their arraignment/initial appearance and to make any necessary bail arguments on their behalf. Anyone who is indigent and is entitled to court appointed counsel but does not receive appointed counsel leaves the initial appearance unrepresented. The MCPDS and commissioner-defendants assert that the lawyer-of-the-day fulfills their obligations to provide an attorney at this (initial appearance) critical stage of proceedings. They assert that the next critical stage is the dispositional conference, so as long as they furnish a lawyer for the person in time for the dispositional conference, that critical stage is covered too. Therefore, there is no 6th Amendment problem unless they fail to provide appointed counsel to a defendant in time for the dispositional conference.
Justice Murphy reads the U.S. Constitutional law much differently, to require that counsel must be appointed to represent an indigent defendant continuously throughout the criminal proceedings, from the initial appearance, when the right to counsel attaches, onward. Given the many important functions that an attorney must perform between the initial appearance and the dispositional conference – reviewing discovery, seeking missing discovery, receiving additional piecemeal discovery, dealing with client mental-capacity issues, preparing for and engaging in plea negotiations, preparing timely pretrial motions, representing the defendant at any bail review hearings, etc. — Murphy found that this interim period is also a critical stage of the legal proceedings that requires representation by appointed counsel.
But why wasn’t it necessary for Justice Murphy to hold a trial, where evidence would have been presented, to make factual findings that the MCILS is in fact failing to provide appointed counsel as required by the U.S. Constitution? It wasn’t necessary because she ruled on the issue as a matter of law.
The ACLU filed a motion for summary judgement and a statement of material facts on this issue raised by count one of its complaint. Motions for summary judgment assert that there is no genuine issue of material fact in dispute and ask the court to rule in the moving party’s favor as a matter of law. Murphy found that the MCPDS did not genuinely contest any material facts. There was admissible evidence in the record demonstrating that the MCPDS has in fact not provided appointed counsel by the scheduled dispositional conference date in numerous cases, that the MCPDS does not have sufficient attorneys on its rosters to ensure the appointment of counsel for people entitled to appointed counsel, and that the problem has worsened over time. There was no genuine contest as to these material facts. Murphy therefore granted summary judgment to the ACLU/plaintiffs on count one.
In count two, the ACLU asserted that the MCPDS is violating the Maine Civil Rights Act by violating the plaintiff sub-class’s right to counsel under the Maine Constitution. Here, Justice Murphy granted the defendants’ motion for summary judgment. On this count, to prevail at trial, the plaintiffs would have been required to prove that the defendants intentionally inflicted injury on the plaintiff class. While the defendants might in fact have deprived the plaintiffs of their right to counsel under the Maine Constitution, Murphy ruled that the plaintiffs did nothing to show that the defendants injured the plaintiffs’ rights on purpose. This claim under the Maine Civil Rights Act could not survive summary judgment.
With count two out of the way, and with a partial summary judgment on count one in place, that the defendants are violating the rights of people entitled to court appointed counsel by not providing counsel, the next step on count one is for the court to decide what to order the MCPDS to do to eliminate the 6th Amendment violation. The court will hold a hearing on this issue later this month.
Meanwhile, the remainder of the litigation’s unsettled issues continue to grind on. Among them is whether the Maine sheriffs named as defendants in count three will be ordered to release the people they are holding in their respective jails who have not received appointed counsel in violation of the 6th Amendment, and whether the State of Maine, which has been named as a defendant in count five, is entitled to be released from the litigation. Eventually, the court will even have to deal with the issue that the ACLU raised in its original complaint: Has the MCILS/MCPDS systemically failed to provide constitutionally adequate counsel to the plaintiff sub-class who received appointed counsel?
But, hey, two-and-a-half years after the ACLU first filed the lawsuit, significant movement is finally afoot. Where will it lead next?
It is interesting to see the MCPDS and its commissioner-defendants argue that the 6th Amendment does not require them to provide appointed counsel continuously from the initial appearance onward. For many decades in Maine, well before the MCILS/MCPDS even existed, counsel has been appointed for those entitled to it, throughout the criminal case. In fact, Maine’s Rules of Court, which have the force of law, require that counsel be appointed “not later than the time of the initial appearance,” to represent the person “at every stage of the proceeding.” For the MCPDS to assert that the 6th Amendment does not require such representation is to say that the MCPDS, and the State of Maine before the existence of the MCILS/MCPDS, always used to provide indigent criminal defendants with a level of representation greater than the 6th Amendment requires in this regard.
It’s no wonder we reached the point where the ACLU sued the MCPDS and its commissioners, given that the parties disagree so fundamentally about what the 6th Amendment requires the MCPDS to do. But the MCPDS’s position here raises another serious question. Given that, until it became impossible, the MCILS always provided representation to indigent criminal defendants above the level that it believes the 6th Amendment requires, does the MCPDS aspire to provide representation to indigent criminal defendants above and beyond what the 6th Amendment requires with respect to the quality of representation too?
In other words, while the standard that the MCPDS and defendant-commissioners believe they must meet to satisfy 6th Amendment requirements appears shockingly low in regard to continuous representation, is it possible that the standard they seek to achieve in other respects is too high? How high a standard do they aspire to achieve above what is required?
This bears on how much expense, if any, Maine taxpayers should be made to bear to support MCILS’s pursuit of marginal attorney-performance gains above what is required by the 6th Amendment. If the MCPDS aspires to secure BMW-level performance from its indigent defense counsel when only Chevy-level performance is required, should non-indigent taxpayers who can only afford Chevy-level performance for themselves, out-of-pocket, be forced to pay for BMW-level performance for indigent defendants?
This is not an idle question. The MCPDS has adopted a very detailed set of training and experience standards for attorneys on its rosters, along with caps on the number of cases its attorneys are allowed to handle and the number of hours they are allowed to work. These rules are unappealing to some attorneys, who don’t want to be regulated and restricted in their practices to this degree. There are indications that the rules have contributed to the reduced number of lawyers willing to sign-on for MCPDS work, thereby exacerbating the current lack-of-attorneys crisis.
Are the MCPDS’s rules really necessary to allow the MCPDS to meet 6th Amendment requirements, or do they go above and beyond, in pursuit of some higher ideal? To the extent that the rules and requirements go above and beyond, are any marginal gains that they achieve justified by the costs they impose, in terms of dollars directly spent to pursue them and in terms of the cost of driving away attorneys who are fully qualified to provide the level of representation that the 6th Amendment requires?
As a baseline for dealing with the MCPDS/indigent defense problems that plague the State of Maine, the issue of what the 6th Amendment requires — actually requires – is the first one that needs to be settled. Obviously, there’s a wide range of disagreement.
Justice Murphy’s recent ruling takes us part of the way there.
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