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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Ashley Sabine tells her story Thursday of her rent being raised drastically at the Maine People’s Alliance meeting in Lewiston to discuss the history and solutions to the housing crises. Sabine now lives in Oxford. Kenny Derboghosian listens at right. Andree Kehn/Sun Journal

LEWISTON — The horror stories just keep coming and coming.

Ashley Sabine, now living in Oxford, was settled in Lewiston and things were good. She was a case manager at New Beginnings and she had a stable income.

All was well until the housing crisis hit.

“My rent was about $850,” Sabine told a group gathered at the Maine People’s Alliance office Thursday night. “I was able to afford it; able to keep up on the payments. Then someone came in, bought the whole building and they raised all of our rents. They gave us a 45 day notice that rent was going to be going up to $1250.”

Tenants of that building, in Lewiston, were seized by panic. Unable to manage the new rent, and with affordable alternatives already in short supply, many of them were facing homelessness.

“There was a lot of panic,” Sabine said. “Basically everyone in the building was forced out one by one.”

Her story was a familiar one as roughly three dozen people met to discuss the housing crisis. The Maine People’s Alliance event was part of a national week of action to call attention to the need for housing reform at the state and federal level.

The group gathered Thursday night involved some who are officially involved in the fight for more affordable housing. Most of them, though, were men and women who have been on the receiving end of drastic rent increases or other issues that sent them scrambling.

Kenny Derboghosian was living at a Lewiston apartment for which he paid $950 a month. He was barely getting by, but he could swing the payments and all was well.

Then some new owner swooped in, bought the building and jacked up the rates to $1,500. Nobody living there could afford the rent, so out they went. Some, like Derboghosian, were able to get Section 8 housing in Auburn. Others — Derboghosian doesn’t know how many — were left homeless.

On and on these stories went, and the mission of this group was to pin down why such displacement is happening so frequently and what can be done about it.

For former Lewiston City Councilor Jim Lysen, a 20-year member of the alliance, this was the third community-style meeting to address the housing issue. Each meeting has been more attended than the last as the crisis widens.

Among the possible solutions that would be discussed Thursday night was the possibility of setting limits for the amount of rent landlords can charge.

It’s not a popular option.

“Rent caps are not something that anybody wants to talk about,” Lysen said, “especially the landlords.”

Jodi Cohen Hayashida, Faith Community Organizer with the alliance, said much of the focus Thursday night would be on price gouging by building owners. And she reminded the group that the problem with soaring rent is not exclusive to the area.

“This is an issue in Lewiston, Auburn,” she said. “It’s an issue across the state. It’s an issue our Legislature is trying to address, which is one of the reasons conversations like this are important, because the Legislature will not know how to proceed if we do not use our voices to name what the real issues confronting us are.”

The housing crisis, Hayashida reminded the group, is a national one.

Chris McKinnon of the Maine People’s Alliance talks Thursday about the history of rent control, rent stabilizations and other policies aimed at making housing costs sustainable for renters. The group has hosted several meetings in recent months to address the housing crises. Andree Kehn/Sun Journal

The alliance has created a Housing Strategy Task Force aimed at seeking out possible solutions to the spiraling problem of rising rents.

Chris McKinnon, a volunteer with the task force, talked about the imbalance that exists right now between tenants and landlords. Most of the issues with price gouging, he said, are not necessarily the work of local, small-time landlords.

It’s the bigger players, who gobble up both residential and commercial real estate as financial ventures.

“I think the focus right now is really on residential, and we’re talking about large corporations, international corporations sometimes, and financial investment groups,” McKinnon said. “When you think about those groups, they really have a massive, great deal of wealth and power and their focus, like all businesses, is on profit making.”

In Maine and other parts of the country, McKinnon said, large investment groups and corporations are controlling larger and larger portions of market share housing.

What can be done to keep those big players from putting renters out of their homes with such abandon?

Building more affordable housing is a start, McKinnon said. But that alone will not solve the problem.

Some of the solutions proposed include the possibility for property regulations, rent stabilization and rental registries to enhance tenant empowerment and data transparency.

Rent registries, McKinnon suggested, are an idea that’s overdue.

“There’s no single source where we can go to to find out who owns what, what the terms are and so forth. And if we’re an individual tenant and we have problems, sometimes we can’t even identify who our landlord is.”

Some real estate investment groups, with international portfolios, are so big that even they might not know they own a particular building where problems are present.

“The rental registry is meant to create a data set that adds some transparency to this housing market and the so-called housing crisis,” McKinnon said, “so that people on the tenant side of the equation can effectively organize and build support and develop solutions around specific kinds of issues that they have data to support.”

The MPA Housing Strategy Task Force is calling for reforms that will include the creation of green social housing, the establishment of national rent caps, and robust tenant protections.

Find out more at mainepeoplesalliance.org

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