After years of litigation, a March ruling set the stage for criminal defendants in Maine to get released from jail or have their charges dismissed because the state had failed to provide them with attorneys.

But an order from the Maine Supreme Court earlier this month has scuttled that process, at least for now. 

In March, Superior Court Justice Michaela Murphy ruled that Maine was violating the constitutional rights of poor criminal defendants by failing to provide them with state-funded attorneys when they were charged, resulting in some defendants going weeks or months without legal representation. The state’s failure to assign attorneys prevented cases from moving forward, further exacerbating a problem of too many cases for too few attorneys. 

Murphy scheduled hearings about the defendants’ potential release in Bangor on June 24 and in Lewiston on July 1, two hot spots of the state’s indigent defense crisis. The proceedings are called habeas corpus hearings, after the legal concept that someone has a right to challenge their imprisonment in court.

Murphy asked the American Civil Liberties Union of Maine, which is leading the class action lawsuit against the state, to file a list of defendants in Penobscot and Androscoggin counties who would be eligible for the hearings. They filed a list of eight defendants on June 9. Five of the defendants were incarcerated in Penobscot County Jail without an attorney at the time, another two were being held at Two Bridges Regional Jail in Wiscasset. 

The eighth defendant was listed as incarcerated in Androscoggin County Jail, but court records show he was released on bail on May 27. Those same court records show that as of June 25, no attorney had been assigned. 

On June 12, the two sides of the case met and agreed that all eight had been assigned attorneys since the filing was made three days prior, according to court records. Despite being seemingly unaware of the eighth defendant’s release, the agreement demonstrated the state can, on a small scale, find attorneys for defendants if sufficiently incentivized. 

In response to the agreement, Murphy cancelled the habeas hearings and instead ordered another hearing to implement a system for the proceedings moving forward.  

But an order from the Maine Supreme Court on June 20 in response to an emergency appeal from the state halted that hearing, and all future habeas hearings, while the high court hears the state’s appeal of Murphy’s decision.

“We conclude that the trial court may not undertake further habeas corpus proceedings in this action during the pendency of this appeal,” Chief Justice Valerie Stanfill wrote in the order. 

Stanfill’s order set oral arguments to begin October 7. The order represents another delay in a case that has already dragged on for more than three years.

“We’re hopeful that, because the appeal is expedited, it will at least move relatively quickly,” said attorney Carol Garvan of the ACLU of Maine. “But this is about people who, every day, are going without counsel, and that affects their cases, but also their lives in really devastating ways.”

A constant churn

The case is a class action lawsuit, with the members of the class constantly churning as defendants without lawyers get them, and new defendants enter the system and wait, either in jail or at home, for an attorney to become available.

On June 23, there were 225 cases in need of an attorney, according to a list compiled by court clerks and distributed to attorneys by the Maine Commission on Public Defense Services, which is a defendant in the lawsuit. 

Most of those cases on the list involved defendants who were out on bail or otherwise not incarcerated while awaiting future court dates. Of the 225 cases, 92 had been without an attorney since before June 1. 

About a quarter of those 225 cases involved defendants who were detained in county jails. Thirty cases involved defendants who had been in custody for 10 days or longer without an attorney. 

The list of unrepresented cases has been shrinking in recent months, however, suggesting Maine’s indigent defense crisis may be waning as the state opens and staffs public defender offices. A year ago, there were more than 1,000 Maine criminal cases in need of an attorney. 

Maine’s total backlog of criminal cases, the vast majority of which are staffed with attorneys, has fallen eight percent in the last year, according to MCPDS data. But the number of pending cases is still 32 percent higher than it was before the pandemic. This month, the number of pending felonies statewide is 65 percent greater than it was in June 2019. 

Despite recent progress, Maine Commission on Public Defense Services Executive Director Jim Billings has warned that the downward trend in unstaffed cases could quickly reverse if the legislature doesn’t provide more funding. The commission oversees both the state’s public defenders as well as payments to private attorneys representing indigent defendants. 

At a Wednesday meeting, Billings said the commission is on track to run out of money by April 2026, after the legislature refused to act on its additional funding request. (The legislature did pass a one-time $3.5 million payout for the commission). Mills has said the commission doesn’t need any more funding, and criticized its rules limiting attorney eligibility and the number of cases attorneys can take. 

At the meeting, commissioners also discussed the possibility that attorneys will move to other types of legal work if payment for indigent criminal defense is delayed or not forthcoming, and not return. 

“A thousand cases on the unrepresented list is going to be child’s play compared to where we will be next spring,” Billings said Wednesday. 

A violation, but what remedy? 

The appeal to the Maine Supreme Court concerns only one count of the five included in the class action lawsuit against the state. The state has also appealed other counts, including Murphy’s ruling that found Maine violated the Sixth Amendment rights of prisoners. But the state filed an emergency appeal on Count 3 specifically, asking the high court to halt the habeas hearings. 

The case is complicated and sprawling, especially in light of the simplicity of the questions at the center of it all: at what point does the delay of a constitutional right, in this case the right to an attorney in criminal proceedings, become a denial? And once a constitutional right is violated, what’s the remedy?

Judges across the state have ruled in individual cases that incarcerated defendants have had their Sixth Amendment rights violated, although there appears to be no statewide count of these rulings.

In many instances, judges ruled that the public safety interest in keeping defendants incarcerated outweighed the need to remedy the constitutional violation. In those instances, the judges acknowledged the unfairness of the predicament, without doing anything to address it. In some cases, however, judges have lowered bail enough so the defendant can pay it and secure their release from jail.  

Maine judges have little precedent to draw from when deciding whether, or how, to remedy Sixth Amendment violations. Those decisions are now made in the shadow of the one that went terribly wrong. 

Last June, Judge Sarah Churchill lowered the bail of Leein Hinkley in response to a Sixth Amendment violation, facilitating his release from Androscoggin County Jail. A few days later, Hinkley violated the conditions of his release by going to the home of an ex-girlfriend and starting a fire that killed a man. Hinkley died at the scene following a shootout with police. 

The decision to lower bail by Churchill, a former defense attorney, sparked a public outcry and criticism from Governor Janet Mills, a former prosecutor. Earlier this year, Mills nominated Kelly O’Connor of the Maine Coalition to End Domestic Violence to the commission, a rare non-attorney selection. 

In March, Murphy ordered a less subjective and more clear-cut procedure for determining the remedy for Sixth Amendment violations. Her process for the now-aborted habeas hearings was based on rulings in similar cases from Oregon and Massachusetts, states that have also been mired in similar Sixth Amendment crises. 

If a defendant had been in jail for 14 days without an attorney, they would be released on bail with conditions while their case proceeded. If the defendant had gone more than 60 days without an attorney, whether they were incarcerated or out of jail but subject to bail conditions, the charges would be dismissed without prejudice, meaning they could be filed again in the future.  

Maine’s high court will decide months from now whether Murphy’s framework will ever be used. In the meantime, many defendants, who have not been found guilty of the charges against them, are waiting under bail conditions or in a Maine jail without an attorney. In many instances, victims of alleged crimes are also waiting for a resolution.