Does Maine’s Assigned-Counsel-Sometimes Reality Satisfy the 6th Amendment?
Posted by Ed Folsom, October 13, 2025
There was recent action in the ACLU’s lawsuit against the Maine Commission on Public Defense Services (MCPDS) and other state entities for failing to adequately provide criminal defense attorneys to indigent defendants. According to a story in the October 8 Portland Press Herald, that day there were “nearly 500 people” entitled to an appointed attorney who had not yet received one.
I have previously blogged about developments in the ACLU’s lawsuit here, here, and here.
Back in March, Superior Court Justice Michaela Murphy issued an order that never took effect because the Maine Attorney General’s Office appealed it to the Law Court. The order called for the release from incarceration of anyone entitled to appointed counsel who had still not received counsel more than 14 days after the person’s initial court appearance. It also called for dismissal of charges against people still waiting for appointed counsel more than 60 days after their initial court appearance. Dismissal was to be “without prejudice,” allowing prosecutors to bring the charge again once counsel becomes available.
To recap, the MCPDS provides so-called “lawyers of the day” to provide limited representation to defendants at their initial appearance. But any such representation ends when the person’s initial appearance is done. The real trouble comes in trying to find lawyers to represent people who are entitled to an appointed attorney from that point on. People frequently wait weeks or longer for a lawyer to be appointed, sometimes while they are locked up unable to make bail. The ACLU says that this violates the rights of indigent defendants under the Sixth Amendment to the United States Constitution. Justice Murphy agreed.
Assistant Attorney General Sean Magenis, who represents the MCPDS, argued that what is happening on the ground does not violate the Sixth Amendment rights of indigent criminal defendants. He argues that the Sixth Amendment right to counsel only applies to “critical stages” of proceedings; it’s only during those “critical stages” of criminal proceedings that indigent defendants have a right to representation by appointed counsel. And he argues that the time between the initial appearance and the dispositional conference – a conference at which the defendant, the prosecutor, and a judge meet and discuss whether there are any motions to be litigated and whether the case will be resolved by a plea agreement or will proceed to trial – is not a “critical stage” of proceedings.
On the other hand, the ACLU argues that the time between the initial appearance and the dispositional conference is a “critical stage,” given how essential it is for counsel to assist during this period with obtaining and reviewing the evidence against the defendant, consulting with and advising the defendant, conducting an investigation, preparing motions, engaging in plea negotiations, etc. Justice Murphy agreed that this is a “critical stage” of proceedings for Sixth Amendment purposes, and she found that failing to provide counsel continuously during this period violates the Sixth Amendment. Then she fashioned a release-from-custody/dismissal-without-prejudice remedy to address the violation.
Assistant Attorney Magenis appealed Murphy’s order on behalf of the MCPDS. On appeal, he again argues that what is occurring does not violate the Sixth Amendment.
Whether what is happening on the ground does or does not violate the Sixth Amendment is a matter of law for the Law Court to decide anew on appeal. Because the question is a matter of law, the Law Court does not owe any deference to Justice Murphy’s conclusion on the matter. But if what is happening does not violate the Sixth Amendment right to counsel of the ACLU’s plaintiff class, the ACLU’s lawsuit is in serious trouble. That’s because the thrust of the ACLU’s lawsuit, at this point, is that the MCPDS is violating the Sixth Amendment to the United States Constitution specifically by failing to provide counsel in the way described above.
It’s odd to consider that the State might only be constitutionally required to provide counsel for indigent criminal defendants piecemeal during criminal proceedings. During my entire time practicing criminal law, as defense counsel and prosecutor, from 1984 through 2021, everyone simply took it for granted that a person’s entitlement to court-appointed counsel applied continuously, from the initial appearance on. But, does the Sixth Amendment right to counsel in fact require this?
Now the question of what the United States Constitution’s Sixth Amendment right to counsel actually requires has been forced through litigation, raised within a particular set of concrete circumstances. When disputes are forced through litigation in this way, a court must make a decision, one way or another. This forces the court to closely examine matters that might previously have been widely assumed, and that can yield answers that few expect.
During the recent Law Court oral argument, at least two of the justices expressed skepticism that the Sixth Amendment requires the state to provide counsel continuously, from the initial appearance onward. The Press Herald story quotes Associate Justice Catherine Connors stating she does not think that any of the ACLU’s class of plaintiffs “has actually been deprived of counsel at any critical stage.” In other words, as long as the indigent defendant is provided with counsel at the initial appearance (presumably a so-called lawyer of the day at this first “critical stage”) and later has counsel in time for the dispositional conference (the next “critical stage), the Sixth Amendment’s requirements are satisfied.
If it is necessary for the court to continue the dispositional conference until defense counsel can be secured, Connors suggested that this might result in a speedy trial violation, but she does not believe it violates the defendant’s Sixth Amendment right to counsel. Again, the ACLU’s specific claim is that the Sixth Amendment right to counsel is being violated. Any potential speedy trial violation is a separate matter that each individual defendant would be required to raise on the particular facts of each case.
Chief Justice Valerie Stanfill questioned why it violates the Sixth Amendment to hold an indigent defendant on high bail for a violent felony just because the person does not yet have counsel appointed. In fact, if the Sixth Amendment right to counsel requires continuous representation after the initial appearance, it is the Sixth Amendment requirement itself that makes it a Sixth Amendment violation not to provide counsel while the person is held in jail after the initial appearance.
But if the Sixth Amendment does not require continuous representation, holding the person in these circumstances probably does not violate the Sixth Amendment. So, what does the Sixth Amendment in fact require? At some point, the Law Court will render its opinion on this matter of U.S. constitutional law. It will inform us whether it finds that Justice Murphy was correct regarding the ACLU’s Sixth Amendment claim and, if she was correct, whether Justice Murphy’s order on remedies is appropriate.
If the Law Court rules that what is happening on the ground in Maine does not violate indigent defendants’ Sixth Amendment right to counsel, what a strange twist that will be. When the ACLU filed its lawsuit, in March of 2022, its claim was that the MCILS (since renamed as the MCPDS) was violating the Sixth Amendment right to counsel of indigent criminal defendants by providing counsel who performed at a constitutionally inadequate level. At that time, the MCILS was at least providing indigent defendants with attorneys to represent them.
Conditions later deteriorated, and the MCILS found itself unable to secure attorneys to represent indigent defendants at all, for weeks and sometimes months on end. This led the ACLU to focus its Sixth Amendment claim on the MCILS’s failure to provide any lawyer at all during such periods, no longer on the alleged constitutional inadequacy of the lawyers who were in fact assigned.
The ACLU never proved its claims that assigned counsel are systematically performing at a constitutionally inadequate level. If the Law Court decides that the existing delays in assigning counsel do not violate anyone’s Sixth Amendment right to counsel, will the ACLU return to its original claim that the lawyers who are assigned are systematically performing at a constitutionally defective level?
While it would be a mistake to read too much into questions that Law Court justices ask during oral arguments, the Court could decide that Justice Murphy was wrong, as a matter of law, in finding a Sixth Amendment violation. What a shocker that would be. I suspect that few would be more surprised than the members of the MCPDS itself, whose lawyer from the Office of the Attorney General has been pressing that argument, ostensibly in their behalf.
But the ostensibility versus the reality of that attorney/client relationship is a whole other kettle of fish, not to be dealt with here.
