Superior Court Justice Michaela Murphy presides over a case between the ACLU of Maine and the Maine Commission on Public Defense Services to determine what, if any, remedies can address the hundreds of criminal defendants waiting for lawyers. Ben McCanna/Portland Press Herald

AUGUSTA — A state attorney told a judge Friday he’s not against releasing some criminal defendants from jail who have been denied their constitutional rights to a lawyer, as long as public safety is taken into account.

Superior Court Justice Michaela Murphy wrapped up a three-day hearing in Augusta on Friday, during which attorneys debated potential remedies for the more than one hundred criminal defendants who she said are unconstitutionally being held in Maine jails without a lawyer.

The American Civil Liberties Union of Maine has asked Murphy to release those who have waited more than seven days for a lawyer, similar to what a judge recently ordered in Oregon.

The idea still concerns victims’ rights advocates.

Andrea Mancuso, policy director for the Maine Coalition to End Domestic Violence, said Friday afternoon that she is disappointed “that those responsible for ensuring a functional criminal justice system in Maine have abjectly failed to resolve these issues over a period of several years.”

“Victims of crime are bearing the consequences of that failure,” Mancuso wrote in an emailed statement. “Given the current state of the system, these timelines would mean that perpetrators of serious or repeat domestic violence are released back into the community when it is not safe, or whole cases are dismissed, and protective bail conditions with them, when the crime victim has come to the criminal justice system seeking help. This is dangerous for victims, and we are deeply concerned about the impact.”

As Murphy appears closer to ordering what she has called an “extraordinary remedy,” she questioned in court this week whether Maine’s public defense agency has done enough to address the crisis.

“The people who are locked up, to me, that is just beyond acceptable,” Murphy told Maine Commission on Public Defense Service Director Jim Billings. “That, to me, would be the priority that I would ask you to think about, for your action plan.”

Murphy found the commission liable for violating the Sixth Amendment requirement to ensure defendants who cannot afford an attorney are appointed one by the state.

But commission leaders and several defense attorneys have argued the group is only one piece of the crisis. Prosecutors, the courts, lawmakers and the governor should also be involved in fixing it, they say.

The ACLU has also asked Murphy to find the entire state liable for the constitutional violation. She has not yet ruled on that issue.

Paul Suitter, an assistant attorney general representing the state of Maine, appears in court at the Capital Judicial Center in Augusta on Wednesday. Ben McCanna/Portland Press Herald

Assistant Attorney General Paul Suitter, who is representing the entire state, insisted that they’re not the party at fault.

“To this point in time, I don’t know who that person is,” Suitter said. “I haven’t heard (the ACLU) identify that person. That person should be here, and sat in a deposition.”

“That person is you, Mr. Suitter,” Murphy said. “You’re here for the government, you’re here for the sovereign state of Maine, asserting ‘sovereign immunity,’ saying that the court has no authority to do anything in this case … I don’t know who else to address than you.”

DISMISSALS STILL ON THE TABLE

The ACLU’s attorney Zachary Heiden argued Friday that criminal defendants have been irreparably harmed by not having a lawyer. The consequences to their ability to defend themselves and the damage to their personal lives are so severe, he said, that they deserve major relief.

There are people spending weeks or months behind bars without any idea of what’s happening with their criminal case, Heiden said. They lose their homes, they lose their jobs and sometimes custody of their children — all while missing out on the opportunity to either prove their innocence or work out a plea deal with prosecutors.

“That’s not how our justice system is supposed to work,” Heiden said.

The ACLU is also asking that charges be dropped against anyone who has been unrepresented for more than 45 days; charges could be refiled when an attorney is available.

Zach Heiden, an attorney at the ACLU of Maine, appears in court at the Capital Judicial Center in Augusta on Wednesday. Ben McCanna/Portland Press Herald

The commission was not opposed to that idea. Frayla Tarpininan, who leads the state’s first brick-and-mortar public defense office in Augusta, testified Friday that it wouldn’t interfere with their work, and that dismissals could even be helpful.

But Suitter questioned whether Murphy has the legal authority to dismiss cases under this type of legal action. He warned the state could still appeal anything that it views is out of bounds.

PUBLIC DEFENDERS

Murphy spent most of the last three days pressing commission leaders on how they’ve handled the crisis. She asked Director Jim Billings several times whether Maine’s new public defense attorneys have the capacity to take more cases, especially because the commission insists they are key to getting the state out of this crisis.

“I don’t see how they’re the solution unless they are being pushed to take more cases,” Murphy told Billings. “I don’t think there’s anybody else you can push.”

Since 2022, Maine has pivoted from a system entirely dependent on private lawyers to a hybrid system that includes full-time public defenders.

Sean Magenis, an assistant attorney general representing the Maine Commission on Public Defense Services, appears in court Wednesday. Ben McCanna/Portland Press Herald

Assistant Attorney General Sean Magenis, who is representing the commission, said Murphy doesn’t need to order the commission to create a plan because it already has one. But that plan, which calls for opening more public defense offices, relies heavily on getting more money from the Legislature during a very difficult time for the state budget.

“Ultimately, this is not a case where there is no care or effort or specific plans in place,” Magenis said. “It’s a question of whether there are differences in opinion as to how to move forward.”

If Murphy orders the state’s new public defenders to take more cases, Magenis warned, it could impair a system that is only in “its infancy.” Most of the state’s public defenders have only recently been hired and are just getting off the ground.

Tarpinian, who was hired at the end of 2023, described how busy she and her attorneys already are.

Four of her attorneys have roughly 80 cases apiece, Tarpinian testified. A fifth has a little more than 50 cases, but that number means little because each case is so unique and depends on the client (who can have more than one open case). Tarpinian said several attorneys were new to the field when they started.

“I’ll continue to push my people as hard as I can without pushing them beyond what they’re capable of,” she said.

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