Judge says settlement agreement for indigent defense system may not go far enough

The judge who will rule on a proposed settlement agreement between the ACLU and state officials is questioning whether it will help as intended with the state’s crisis in indigent defense.

Under the agreement reached between the ACLU of Maine and the Maine Commission on Indigent Legal Services, the commission pledges to continue to push the Legislature for more funding and resources to improve legal representation for the poor, particularly for additional public defense positions.

Kennebec County Superior Court Justice Michaela Murphy at the Capital Judicial Center in Augusta in January. Joe Phelan/Kennebec Journal

But Kennebec County Superior Justice Michaela Murphy said at a hearing Wednesday that the deal didn’t do nearly enough to address the crisis the ACLU described in its lawsuit against the commission, Maine Public reported.

The ACLU sued the commission in March 2022, alleging poor Mainers weren’t getting enough time with their court-appointed attorneys. The civil liberties organization said the lawyers weren’t responding to calls and weren’t helping its clients understand their cases or the evidence against them.

The commission is responsible for maintaining and overseeing a list of private, contracted attorneys willing to represent Mainers who can’t afford attorneys in criminal and some parental rights cases. That roster is much shorter than it was four years ago. In 2019, there were more than 400 lawyers on the list, but as of June, there were just 212 rostered attorneys, according to commission meeting minutes from that month.

Chris Guillory, the commission’s director of training and supervision, told commissioners at their July 17 meeting that 450 full-time attorneys would be needed to meet the projected demand.

Under the settlement, the commission and the ACLU agree to come up with minimum qualifications for court-appointed attorneys. The commission commits to using newly accessible data from the court system and county jails to figure out which Mainers still need attorneys and how effectively those attorneys are working.

Murphy said at Wednesday’s hearing that she’s observed the issue in her courtroom firsthand, overseeing many cases with low-income defendants and overworked attorneys, Maine Public reported. She said the deal didn’t follow the parameters she had set in a previous hearing and that some of the proposed rulemaking might scare off the attorneys the commission is trying to attract.

The attorneys on both sides told the judge that the agreement sets the parties up for structural reform, instead of just issuing rules and walking away, Maine Public reported.

Murphy indicated she will have a decision within a week on whether the agreement will move forward.

The public hearing was not disclosed to the Portland Press Herald when a reporter called the courthouse on Tuesday and Wednesday inquiring about recent activity and any scheduled hearings in the case.

Barbara Cardone, the director of legal affairs and public relations for the Maine Judicial Branch, said the “miscommunication” was the result of a docketing error. She did not provide any written or audio records of the hearing after multiple requests but sent information on how to order and pay for transcripts from the court.

Records for Maine’s court system are not digitized, and case dockets and information are typically only available over the phone or in person at courthouses. The Maine Judicial Branch has recently launched a website for “high profile cases,” as deemed by the number of public and media requests for files. An effort to make most cases available online has been in the works for years.

The ACLU and the Office of the Maine Attorney General, which is representing the commission in the case, would not share details of Wednesday’s hearing or discuss their reaction to the judge’s comments.

The settlement agreement still needs to be approved by Murphy and the hundreds of plaintiffs who signed on to the class-action lawsuit will have an opportunity to weigh in. If approved, the state would have to pay the ACLU $295,000 to cover attorney fees. The ACLU would have the ability to refile its claims after four years if the terms are not met.