A remedy for, and the prosecution’s role in, sixth amendment violations in Maine.
Posted by Ed Folsom, March 25, 2025.
In early March, Superior Court Justice Michaela Murphy issued an order on the ACLU’s long-running lawsuit against the Maine Commission on Public Defense Services (MCPDS), its commissioners, and the State of Maine. The order provides that, soon, a process will begin playing out under which criminal defendants who are entitled to court-appointed counsel and are incarcerated without counsel for more than 14 days after their initial court appearance will be ordered released from custody. Those who go more than 60 days after their initial appearance without counsel will have their charges dismissed without prejudice and may not be re-charged until there is a lawyer available to represent them.
As I blogged back in January, Justice Murphy previously decided that the MCPDS and its commissioners are violating the Sixth Amendment right to counsel of this same class of people by failing to provide them with counsel continuously, beginning at their initial court appearance.
The minutes of the MCPDS’s February 22, 2025 meeting show that there were then only 101 attorneys statewide who were rostered to handle trial level cases (as opposed to lawyer-of-the-day, appeals, etc.). Of that 101, only 32 were accepting adult criminal cases. MCPDS Executive Director James Billings reported, “There are approximately 600 people in the state right now who do not have a lawyer.”
In other words, there are not enough rostered lawyers available to represent those 600 people. Now, the MCPDS must somehow, magically, find lawyers to continuously represent all the people entitled to court appointed counsel. Failing that, those criminal defendants will be released from incarceration and/or have their charges dismissed without prejudice under Justice Murphy’s remedial order.
Why does Maine have a sixth amendment problem – is it the prosecutors?
I have blogged numerous times about the various reasons that the State of Maine finds itself in this fix – why there are so few lawyers willing to work for the MCPDS. Many of my former colleagues in the criminal defense bar are fans of the MCPDS and the idea of shifting much of the burden of indigent criminal defense off the private bar and onto a public defender system staffed by state-employed public defenders. Some bristle at any suggestion that the indigent defense crisis has anything to do with not having enough attorneys willing to do the work. They have attempted to re-frame the issue as one not of too few attorneys available to do the work but of too many cases being fed into the system by out-of-control prosecutors.
But there are problems with that argument. First, Maine’s crime rate has fallen steadily over the past decade and more, and the number of criminal charges prosecutors file in court has declined along with the declining crime rate (read here). Yet, somehow, the number of cases handled by the MCPDS has risen in recent years. Also, to at least some degree the number of criminal cases filed by prosecutors reflect crimes that are actually committed, crimes that call-out for the filing of criminal charges by prosecutors responsible for enforcing the criminal laws that the Maine Legislature chooses to create. If we were down to one lawyer in Maine willing to accept indigent defense cases from the MCPDS, someone still might argue that the problem is not that there are too few lawyers to handle the work but that prosecutors are filing too many cases. It’s a loser of an argument, and it’s not a much better argument when we are down to the last 32 lawyers instead of the last one.
On the other hand, when prosecutors file charges that they can’t prove, they exacerbate Maine’s Sixth Amendment crisis. As MCPDS’s Executive Director Billings also pointed out at the February 2025 meeting, there were at that point 6,026 more criminal cases pending in Maine courts than were pending in February of 2019. Part of what has driven lawyers off the MCPDS rosters is their instinct for self-preservation. Those 6,026 extra backed-up cases — a clog mostly due to Maine’s and its Judicial Branch’s pandemic policies — remain on the caseloads of the lawyers handling them, and there are only so many cases that a lawyer can competently carry at once. The lawyers who have fled the MCPDS’s rosters don’t need any more MCPDS cases added to their pile. It isn’t safe from a competency standpoint, and it threatens to preclude them from taking on more lucrative work if their capacity is used-up by MCPDS cases that linger for years.
To the extent that prosecutors are bringing charges they can’t prove, they are a big part of the problem. Also, to the extent prosecutors are insisting on a jail sentence upon conviction for crimes that don’t necessarily call for jail time, they exacerbate the problem by sending more indigent defendants to the MCPDS for appointed counsel when there are no counsel to appoint.
Do Maine prosecutors sometimes make crappy charging decisions and policies?
But Maine prosecutors would never overcharge or unnecessarily declare a “risk of jail” in the face of Maine’s ongoing Sixth Amendment crisis, would they? Well, yes, actually they would. And the trouble is that there’s nothing much that can be done about it. D.A.’s are elected, executive branch officials with autonomy to make charging decisions as they see fit. They can make the worst, most unsupported charging decisions you can imagine. As long as the charge is supported by the very low standard of probable cause, and as long as the D.A.’s don’t mind losing all their trials and don’t get turned out of office at the next election, they get to keep right on making their lousy prosecution decisions. Meanwhile, the courts keep right on staying clogged because the accumulation of crap sticks in the way of a good cleaning-out.
And that brings me to a recent news story about a kindergarten teacher in Bucksport who was charged with felony assault on a student and endangering the welfare of a child; lost his teaching job; waited nearly 2 years for a jury trial before finally selecting a jury; only to at that point have the D.A. decide that the charges should never have been brought. So, the case was dismissed, and the new D.A. who took over for the former D.A. whose office originally brought the charges said: “I reviewed the evidence. I would not have approved this case for prosecution myself…It was my opinion and the opinion of my assistants, who also reviewed the video, that the conduct didn’t amount to something that should be prosecuted.” Well then… No harm, no foul?
Even defense lawyers sometimes support crappy, political charging policies.
As an aside, I can recall a time not long ago when some fellow members of the defense bar had me pegged as a sort of caveman for taking issue with Sagadahoc County D.A. Natasha Irving’s advertised policy of pursuing marginal and unprovable sex cases because, as she put it in a February 2020 NPR story, “I do think personally, I would rather show a victim that we will fight for them, than [rejecting a case] because it’s too hard to prove beyond a reasonable doubt.”
This was less than a year-and-a-half after Supreme Court Justice Brett Kavanaugh’s #MeToo, #BelieveAllWomen confirmation circus-hearings took place, back when #MeToo and #BelieveAllWomen were still trending hard. Some people still even had their pink “pussy hats” before they traded them in for a Covid mask. In that atmosphere, even some of my defense bar brethren thought it was far more important to be on the right side of history than to express retrograde concerns about whether a given case of this type was provable beyond a reasonable doubt (which couldn’t possibly have to do with whether the alleged crime actually happened, because #BelieveAllWomen teaches, categorically, that all such reported crimes actually happened if a member of a certain group says they happened). I point this out because decisions to bring crappy charges can be made for many reasons, not the least of which is sometimes a political reason, and sometimes even defense attorneys can get caught up in the zeitgeist, depending on their political leanings. There are many potential sources of contamination — some even rooted in fleeting pop culture trends — even though this is not how it is supposed to work in a just system of justice.
Continuing on the topic of crappy prosecutorial charging decisions, the minutes of the MCPDS’s February 2025 meeting reflect that Aroostook County’s District Defender Toby Jandreau reported the following:
“Defenders have been noticing that prosecutors are not properly screening cases. They are charging offenses which are not even crimes. The failure of prosecutors to adequately screen cases and provide discovery as required costs defenders a substantial amount of time. There are also rampant discovery issues. In Aroostook, we have had 12 motions for discovery sanctions that were granted by the judge.
In one case, a defender spent 10 hours to get discovery that the client was entitled to. Since I have been a district defender, we have had nine jury trials. Five ended in an acquittal, one was a dismissal for a discovery violation, one resulted in some guilty and some not guilty findings, and one was a mistrial. Of the nine jury trials, there was one conviction.”
Now, that’s crap. And it’s a serious problem, because we don’t have enough lawyers to assign to indigent defendants who are entitled to court-appointed counsel. And because we don’t have enough lawyers to assign to indigent defendants entitled to court-appointed counsel, Maine is violating their Sixth Amendment rights. Part of the reason Maine doesn’t have enough lawyers to fulfill its Sixth Amendment obligations is that some of the lawyers have left the court-appointed rosters to keep their professional competence and financial security intact. This is necessary because the courts are failing, for years on end, to bring to resolution the cases that these attorneys’ are carrying on their caseloads.
The courts only have the capacity to handle so many criminal trials, much of which is taken up dealing with crap cases that end up being dumped at the last minute or end up in acquittal, so the clogging of the courts’ dockets persists. But because the judicial branch is separate from the executive branch from which the D.A.’s draw their power, there isn’t much that the courts can do about bad D.A. discretion. The Legislature just keeps pumping out the crimes for D.A.’s to prosecute, and the Legislature shows no enthusiasm for cutting back D.A. funding to punish systemically crappy charging decisions.
The only thing to be done about the prosecutorial aspect of the Sixth Amendment problem is to dig into the crappy charging decisions and make them public, to publicize the last-minute dismissals on the eve of trial of life-damaging charges that should never have been brought, to shine light on the inordinate trial acquittal rates of certain D.A.’s Offices, and then throw the bums out when it comes election time.
But given the balance and separation of powers and the public’s apathy on the subject, what are the chances of that happening, really?
