Judiciary asks Maine’s high court to dismiss petition to release unrepresented defendants

State officials are asking Maine’s highest court to dismiss a petition filed last month that called on judges to identify and release from county jails low-income people who are being held pretrial without an attorney.

Portland attorney, Rob Ruffner, with his dogs, Gideon, front, Flynne and Luke, outside of his Portland office last month. Ruffner, who is the director of Maine Indigent Defense Center, has filed a petition alongside co-counsel Rory McNamara, asking the Maine Supreme Judicial Court to release a woman, who has been in jail for 80 days, because she hasn’t been appointed legal counsel. Brianna Soukup/Staff Photographer

Attorneys Robert Ruffner and Rory McNamara filed the petition on behalf of Angelina Dube Peterson and all “similarly situated Mainers” on Sept. 20, naming two Maine judges and two county sheriffs as respondents. The lawyers said they were unable to identify other petitioners because the state doesn’t track who’s sitting in jail unrepresented, but they believe the problem is widespread.

Peterson was arrested on July 10 after violating bail conditions from a June 28 arrest on drug trafficking and possession charges, according to court documents. She spent more than 80 days in two different jails without an appointed attorney, even though two Maine judges agreed she was financially eligible for an attorney at the state’s expense, according to the petition. Court records show that in both instances, the judges left a blank space where a lawyer’s name should be written on the motion for court-appointed counsel.

Ruffner and McNamara are representing Peterson pro bono. Ruffner said he found out about the case after Peterson’s parents reached out.

Days after the petition was filed in the Maine Supreme Judicial Court, Peterson was appointed an attorney and released from custody on bail.

In a response to the petition, Assistant Attorney General Sean Magenis argued that the appointment of an attorney and Peterson’s release make the entire case moot. He also argued that the petition’s attempt to seek relief on behalf of anyone in a similar situation relied on “speculation,” and that it was “improper and of no effect.”

A spokesperson for Magenis declined to comment on the case Thursday, saying the Office of the Maine Attorney General does not discuss pending litigation.

Ruffner said Thursday that he believes the petition is still appropriate, even if Peterson was appointed counsel and released days after it was filed. He said he’s aware of “dozens” of Mainers who are locked up without a lawyer, including at least 20 people in one county.

The petition names as respondents the judges, Sarah Gilbert and Carrie Linthicum, who agreed that Peterson was entitled to an attorney but failed to assign one, as well as the sheriffs of the jails where she was locked up, William King in York County and Peter Johnson in Aroostook County. All parties are scheduled to appear before Maine Supreme Judicial Court Justice Wayne Douglas for a private conference on Monday.

Johnson’s attorneys said in a response Wednesday that he was “merely a custodian” who had no impact on Peterson’s bail amount or whether she had an attorney. King’s attorney, Tyler Smith, requested his client be dismissed from the petition.

“He cannot appoint lawyers, nor can he decide on his own to release an inmate as a remedy if counsel is not timely appointed,” Smith wrote.

McNamara said Thursday that the respondents and their attorneys represent only some of the people who are alleged to be unlawfully detaining low-income Mainers.

“No doubt this is costing Mainers a pretty penny,” McNamara wrote in an email Thursday. “It’s too bad those resources weren’t directed in the first instance into creating a public defense system that would have both protected indigent Mainers’ rights and avoided the need for this expense. On the other side, two attorneys with virtually no civil practice experience represent the poor pro bono.”

The petition is one of two legal efforts to address Maine’s struggle to meet its constitutional obligation to provide an attorney to criminal defendants who can’t afford their own. The Maine Commission on Indigent Legal Services is responsible for recruiting and overseeing a handful of public defense attorneys and the contracted private attorneys who are appointed to represent low-income Mainers.

But the commission’s roster is thin – earlier this month, there were only about 60 private attorneys accepting new trial-level, criminal cases. Another 40 were only accepting new cases as “lawyers of the day,” where they represent clients for their initial appearances until a more permanent attorney can be appointed.

The commission has started to grow its network of public defense offices even as the crisis remains acute. Lawmakers agreed to fund a Kennebec County public defender office this year, after authorizing the state to hire five deployable public attorneys in 2022. The agency’s commissioners voted on Wednesday to advocate for six additional offices around the state in upcoming budget requests at a cost of nearly $9 million. That proposal would require the Legislature to appropriate funding.

The Maine Commission on Indigent Legal Services also is working on a long-term plan to improve its oversight of private attorneys, who still would handle a majority of the state’s court-appointed work. Last month, the commission and the American Civil Liberties Union of Maine, which sued the agency in March 2022, reached a tentative four-year settlement that called on the commission to implement new rules and performance metrics for lawyers.

But Superior Justice Michaela Murphy rejected that deal in September, forcing them back to the drawing board. Murphy said she appreciated the long-term goals but felt the proposed settlement lacked emergency remedies to the thousands of criminal defendants MCILS serves, any number of whom could lack effective legal representation during that four-year period.