Maine
Trial over Maine’s indigent defense crisis set to begin in December
A judge has scheduled a two-week trial in December to address Maine’s indigent defense crisis, nearly three years after a civil rights organization first filed a lawsuit over the issue.
The American Civil Liberties Union of Maine is suing the state, alleging that it is violating the constitutional rights of criminal defendants who can’t afford legal counsel, who are entitled to a lawyer at the state’s expense.
At least 800 people accused of crimes were waiting for a court-appointed lawyer, according to an ACLU analysis of court data on Monday. A quarter of those people were in jail. Roughly 670 had been waiting more than 10 days for a lawyer, according to the ACLU, and more than 450 had been waiting more than a month.
That’s because the state does not have enough attorneys, mostly private lawyers, taking on court-appointed work.
At trial, the ACLU will ask the court to declare that Maine is violating both state and federal law by not providing enough lawyers to the people it charges.
Carol Garvan, the legal director at ACLU of Maine, talks with Zachary Heiden, the chief counsel at the ACLU of Maine, during a hearing with Superior Justice Michaela Murphy in Kennebec County Superior Court in September 2023. Brianna Soukup/Staff Photographe
“We will be arguing that when people are waiting for weeks, sometimes even for months, to get an attorney, then important evidence is lost in their cases,” said the ACLU’s legal director, Carol Garvan. “Their cases can’t be investigated. Important witnesses’ memories fade, cases cannot move forward. Those kinds of delays undermine the basic constitutional right to a fair trial, which is what the right to counsel is all about.”
A spokesperson for the Office of the Maine Attorney General, which is representing the state defendants, including the Maine Commission on Public Defense Services, said their attorneys do not comment on pending litigation.
The parties have until Oct. 4 to decide whether any of the trial will involve a jury. And they have until Nov. 15 to finalize witness lists. Garvan said they were unable to share a tentative list Friday, but it’s likely their case will involve experts and people who have been affected by the crisis.
She mentioned firsthand accounts of people who have lost their jobs and housing while waiting in jail; one person missed their child’s birthday and wasn’t even able to call.
“They’re sitting there, knowing that the whole weight of the prosecution, of the state, is being brought against them,” Garvan said. “And they have no one on their side. … They don’t know what their rights are, they don’t know who to call to understand what is even happening in their case, and they don’t know how long this is going to last, because it could be a few days or it could be months before they get counsel.”
YEARS IN THE MAKING
The ACLU of Maine filed its lawsuit over Maine’s indigent defense system in March 2022.
At the time, the ACLU’s chief concerns were the quality of legal representation provided to defendants – they alleged private lawyers, overseen by the commission, weren’t communicating with their clients or spending enough time on their cases.
But then in November 2023, Maine’s courts acknowledged some defendants weren’t getting any legal representation at all. The number of lawyers available to accept new criminal cases in various counties has plummeted, leaving hundreds of constitutionally entitled defendants in limbo.
Superior Court Justice Michaela Murphy presides during a hearing at Kennebec County Superior Court in September 2023. Brianna Soukup/Staff Photographe
After the parties attempted to settle their original lawsuit several times, Superior Justice Michaela Murphy ordered the ACLU and the commission to go to trial and raise a case that addresses the state’s current reality. That meant convincing Murphy to also let them sue the state of Maine and Attorney General Aaron Frey, whose office oversees prosecutions of homicides and works with district attorneys.
Murphy will order a second trial, to address the quality of indigent representation, at a later time.
The ACLU was granted class action status, meaning they represent the interests of all criminal defendants who are entitled to a lawyer.
On Thursday, Murphy agreed the class includes anyone who is eligible for a court-appointed lawyer, but who is still unrepresented after their first appearance or arraignment. That includes people facing felony charges and misdemeanors.
A ‘WHOLE STATE’ APPROACH
Even if the court were to agree that the state is violating constitutional rights, it’s still unclear what any relief would look like.
“Ultimately the purposes of this lawsuit is to hold the state accountable,” said Garvan. “That means there’s going to need to be a sort of ‘whole state’ approach.”
One potential remedy, said Garvan, is to release people who don’t have counsel from jail or dismiss their charges without prejudice.
Last year, a Maine Supreme Judicial Court justice rejected a request from a pair of lawyers who do indigent defense work to create a statewide process in which unrepresented defendants are released from jail after seven days. A similar rule is in place in Oregon.
Some Maine judges have lowered bail for unrepresented defendants and one has ordered a charge be dismissed, but this varies from case to case and county to county.
Prosecutors and victim advocates have voiced concerns around this practice and questioned what the commission and the courts are doing to prioritize appointing counsel in cases where serious violence is being alleged.
Many have welcomed the opening of public defense offices around the state as movement in the right direction. In Kennebec County, where the first brick-and-mortar office is in full swing, only seven defendants were in need of a lawyer on Wednesday, according to data compiled by the courts.
But a majority of cases are still being handled by private attorneys.
“It is both not going to fix things immediately and it is not a silver bullet,” said Garvan. “I don’t think there’s anyone who thinks that will automatically fix everything, but I think that’s been one positive (change).”
Many Maine municipalities will open cooling centers this week with the National Weather Service issuing a variety of heat advisories covering the next few days.
The Maine DEP also issued an air quality alert for Wednesday with ground-level ozone expected to reach levels that are unhealthy for sensitive groups.
All of York County, interior Cumberland and Androscoggin counties, and the southern half of Oxford County will fall under an extreme heat warning from 11 a.m. Wednesday to 8 p.m. Friday.
The warning calls for “dangerously hot conditions” that could feature heat index values of up to 110 degrees, with overnight lows only expected to fall into the 70s, according to the weather service’s office in Gray.
The rest of the state — save northern Aroostook, Piscataquis and Somerset counties — falls under a heat advisory from 11 a.m. to 8 p.m. on Wednesday. However, the weather service has also placed much of the state under an extreme heat watch for Thursday.
Heat index values, which measure how hot it feels to the human body when relative humidity is combined with the air temperature, are expected to reach up to 104 degrees during the heat advisory period, the weather service warns. They could reach 110 degrees Thursday, when the extreme heat watch is in effect.
Northern Oxford and Franklin counties, and central Somerset County, can expect a heat index value of up to 99 degrees Wednesday, according to the weather service.
The weather service advises people to drink plenty of fluids, stay in air-conditioned rooms when possible, avoid extended periods in the sun and check up on relatives and neighbors. It also warns not to leave young children and pets in unattended vehicles, as “car interiors will reach lethal temperatures in a matter of minutes.”
Cooling Centers
The Maine Department of Environmental Protection has also issued an air quality alert from 10 a.m. to 11 p.m. on Wednesday along the coast from Kittery to Acadia National Park. The agency warns that ground-level ozone concentrations are expected to reach levels that are unhealthy for sensitive groups.
Ozone levels may reach “moderate levels” further inland, according to the Maine DEP, including in all of Androscoggin and Kennebec counties, as well as parts of Cumberland, Knox, Lincoln, Penobscot, Sagadahoc, Waldo, Washington and York counties.
Elevated ozone levels can pose a risk to children, older adults and people suffering from respiratory or heart diseases, according to the Maine DEP. Anyone exerting themselves outdoors may also experience health effects, which could include coughing, shortness of breath, throat irritation and mild chest pain.
Ozone levels were already climbing in southern New England on Tuesday, according to the Maine DEP, and winds are expected to bring those conditions to Maine on Wednesday.
The Maine DEP recommends that vulnerable populations avoid strenuous outdoor activities, keep windows closed, and circulate indoor air with fans or air conditioners. Those with asthma are also advised to keep quick-relief medication handy.
Particle pollution levels are also expected to be moderate across the state on Wednesday due to wildfire smoke, the Maine DEP said in its announcement Tuesday. Wildfires in Colorado, which have claimed the lives of three firefighters, had burned nearly 90,000 acres as of Tuesday, according to the Denver Post.
Maine could face up to $50 million in penalties next year due to errors in its payments for federal food benefits under the Supplemental Nutrition Assistance Program.
Newly released data from the U.S. Department of Agriculture find that Maine’s error rate last year was nearly 11%, the bulk of which were overpayments. That’s in line with the U.S. average. But starting in October of next year, states with error rates above 6% must cover a portion of the SNAP benefits.
Anna Korsen, executive director of Full Plates, Full Potential, said the overpayments aren’t fraud — they’re human error. She said this new cost-shifting policy enacted last year under the Trump administration further complicates the SNAP application process.
“Instead, we could make this program more accessible and more efficient,” Korsen said. “And that would reduce the number of errors and also ensure that Mainers who are eligible for SNAP have access to it.”
She’s urging Congress to delay or reverse the policy under the farm bill that’s currently under consideration.
Maine’s Department of Health and Human Services said it’s taking steps to reduce the error rate, including modernizing its systems and hiring an additional 40 eligibility specialists.
This story appears through a media partnership with Maine Public.
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