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).”

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