If there was a possibility you might serve a single day in jail, wouldn’t you want a lawyer protecting your rights?
But, as we reported on Sunday, when it comes to the process of seeking a protection-from-abuse order, legal representation is not guaranteed and, for those without lawyers, the consequences of arguing your own case can be painful.
On any given day in any district court in this state, a person can apply for — and receive — a temporary protection-from-abuse order based on a sworn affidavit that they have been threatened, feel threatened or have been harmed by another person.
The paperwork is straightforward and, once signed, launches a series of actions in civil court to protect the PFA applicant from further harm.
These temporary orders prompt quick action, including forcing the accused abuser out of the family home, blocking the accused abuser’s ability to see his or her children and setting up mandatory restrictions on how, when and where an accused abuser may contact the PFA applicant.
Unlike a criminal proceeding, in this emergency civil action the guilt of the accused is presumed and punishment is immediate.
A month later, if the applicant is ready to proceed, he or she may argue before a judge to make the order permanent to protect herself or himself, their children or others.
In many cases, the person seeking the permanent PFA order has a lawyer arguing the case. The person defending himself or herself does not, granting an automatic advantage to the applicant.
When a person abuses, threatens or strikes their spouse, their children or their parents, a PFA order is warranted to protect the innocent.
That’s true, except when it isn’t.
As any lawyer versed in domestic law will tell you, a PFA — even a temporary one — is a valuable weapon in the divorce battle and some people can and do lie — sometimes abusively so — to get these orders to leverage child custody or possession of the family home.
It’s not right, but it happens.
And it happens enough to be a real concern to defense attorneys, prosecutors and judges when this punitive process wrongly affects an accused who can’t afford a lawyer.
Maine lawyers are exceptionally generous in providing free counsel to defendants through indigent programs, but there’s simply not enough free or subsidized help to go around.
And, given the state’s economic situation, it’s not likely that indigent legal programs will get more funding, which leaves too many defendants going it alone against seasoned lawyers.
As a society we appoint attorneys for defendants facing criminal charges, but we don’t do that in PFA court where an infraction of a civil order automatically triggers a criminal charge.
As one lawyer told us after reading our report on the legal imbalance in PFA court, "in the most important medical affairs of a person’s life he or she would be foolish not to at least consult a doctor,” but when it comes to the equally critical issue of defending against a permanent order splitting you from your family or your home, too many defendants — to their detriment — go it alone.
We’re not suggesting that justly accused defendants should avoid punishment or that the abused should not have the legal protection of a PFA, but there is a serious and unjust tilt in our courtrooms when one party has access to free legal counsel and the other party does not. Especially when this civil action could — and often does — evolve into a criminal complaint.
Worse, the greatest imbalance in PFA court falls on poor and indigent defendants.
A lot of PFA applicants have access to free counsel and courtroom advocates and wealthier defendants hire attorneys, but the poorest are the least likely to have lawyers by their sides.
No matter what they are accused of, there’s no equity if the poorest defendants have the least access to counsel and, as a result, likely suffer the most.
The best and most immediate solution, of course, would be for every person to treat others with kindness and respect, negating the need for PFAs. But, that's not likely to happen and, beyond that, there are no easy solutions.
No one wants to see rightful access to a permanent PFA order diminished, but Maine’s legal system has inadvertently picked sides in domestic disputes by arranging counsel for PFA applicants and not for defendants.
Attorneys have suggested that the Maine State Bar Association could try to cobble something together for these defendants as part of its Volunteer Lawyers Project. Or, that clients could be more resourceful about asking attorneys to unbundle services to make them more affordable, or perhaps PA courts could arrange for the availability of so-called “lawyers of the day” for same-day consultation as is done in criminal courts.
These are good suggestions and we urge the Maine bar to tackle this problem because continuing to allow this imbalance of legal representation in PFA proceedings is wrong. There's simply too much at stake.
The opinions expressed in this column reflect the views of the ownership and the editorial board.