AUBURN – Lawyers representing Maine’s criminal defendants who can’t afford legal services shouldn’t continue to be paid through the judicial branch, a group studying the issue said in a recent report.

That group, led by Maine Supreme Judicial Court Justice Robert Clifford, proposed legislation for this session aimed at carving out an independent commission that would oversee the list of lawyers who offer legal services to indigent criminal defendants. Legal counsel also is available to those in court facing the loss of parental rights and those facing involuntary commitment to a psychiatric hospital.

The proposal would take away from the judge presiding over a case the authority to control the resources of a defendant who depends on the judiciary for funding, an authority they don’t have over prosecutors or defendants who pay their own attorneys’ fees.

While lawsuits have spurred creation of such commissions in some states, the group studying the issue in Maine hoped to avoid a similar fate by moving forward on its own to separate indigent legal services from the bench, Clifford said.

Moreover, because there is no line item in the judiciary budget earmarked to cover the cost of attorneys’ fees for the indigent, money budgeted for other judiciary matters is diverted to pay attorneys.

“It’s really cannibalized our budget,” Clifford said.

Money spent on legal fees for indigent adults and juveniles in Maine’s superior courts was $4.5 million in 2008, compared to $1.9 million in 1999. The number of cases of indigent defendants more than doubled over the same period, according to the report.

Contributing to the increase is legislative action that has changed some misdemeanors to felonies, Clifford said. Also, an increasingly greater portion of defendants qualify as indigent.

The cost per case is roughly the same as it was a decade earlier, though. The fee structure for attorneys representing indigent clients has stayed even since 1999. In that year, the hourly rate rose from $40 per hour to $50 per hour; the rate hadn’t gone up since 1987. Also, there are caps on the total amount an attorney can be paid for a single case and those caps are set by the Maine Supreme Judicial Court. Amounts that exceed those caps can only be approved by the chief judges of the respective trial courts.

The idea is not new: A 1986 effort to split the bench from indigent defense was never implemented.

“It’s something I think that should have been done a long time ago,” Clifford said.

Nor is the concept unique. In 42 states, including the rest of New England, indigent legal services are provided by an agency and paid apart from the judiciary, the report says.

Not only would the proposed new commission – akin to the Maine Human Rights Commission – oversee operations of these services, it would advocate for needed measures to ensure the efficiency and quality of the legal services provided, the report says.

Unlike a public defender system, in which lawyers are employed by an agency separate from the judiciary, the private status of the attorneys on the list would remain unchanged.

The proposal calls for no increase in spending; the proposed personnel (an executive director and support staff) would be peeled off from the judiciary’s budget along with money for those positions and any money expected to cover the cost of attorneys’ fees.

Verne Paradie, a local lawyer who has represented indigent clients in Maine for 10 years, said it’s not easy to provide a thorough defense on such limited funding, especially at the appellate level.

“It’s tough,” he said. “That, to me, creates an unfair situation for defendants.”

He said he’s not persuaded that simply creating a new commission to oversee the operations of legal services for the indigent would solve that problem.

Only if the Legislature were to funnel to the new commission the money needed to cover the true hours worked by the lawyers as well as the costs of experts needed to try a case would the indigent get truly equal justice, Paradie said.


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