Superior Court Justice Michaela Murphy presides over a hearing at Kennebec County Superior Court in September 2023. Brianna Soukup/Portland Press Herald

Maine will start releasing people from jail in April if they have waited more than two weeks for a lawyer, a judge ruled Friday.

Additionally, charges other than murder will be dropped against anyone who has waited more than two months for a lawyer. Those charges could be brought again once an attorney is available.

These unprecedented remedies were ordered by Superior Court Justice Michaela Murphy after she recently found that the state has violated the constitutional rights of hundreds of criminal defendants who are constitutionally entitled to a lawyer because they can’t afford one on their own. 

But before any of this can take place, Murphy is giving the Maine Commission on Public Defense Services, the quasi-state agency in charge of finding lawyers for those who can’t afford their own, a month to develop a plan to “provide continuous representation as required by the Sixth Amendment.”

“The Court cannot and does not expect miracles,” Murphy wrote. “The Defendants can only do what is possible. But it is clear that the Defendants have not been prioritizing finding or providing counsel for the incarcerated Plaintiffs … who are waiting for MCPDS to do just.”

‘SIGNIFICANT IMPACT’

The commission has been locked in a lawsuit since 2022 with the American Civil Liberties Union of Maine.

“This is an order that’s going to have a very significant impact for this case that’s been going on for more than three years,” ACLU Chief Counsel Zachary Heiden said in a phone call Friday. “And in that time, the number of people without counsel has grown significantly.”

Zachary Heiden, the chief counsel at the ACLU of Maine, at Kennebec County Superior Court in September 2023. Brianna Soukup/Portland Press Herald

Neither the attorney representing the commission, nor its director nor its chair responded to requests on Friday to discuss Murphy’s order.

Murphy wrote that the public interests in this case are “significant” and include “the public interest in a fair, functional, and stable criminal justice system; the public interest in the protection of the liberty interests for all the citizens of Maine who are charged with crimes punishable by incarceration; and the public interest in ensuring that the presumption of innocence is meaningfully protected against the power of the state through the effective assistance of counsel.”

She has scheduled a hearing for April 7 to meet with the various parties, and to begin considering the case of any entitled defendant who is still in jail without a lawyer.

At that hearing, Murphy will order the release of anyone who has been unrepresented for at least 14 days, unless the state can find them an attorney within the following week. They will be released with court-enforced conditions to ensure public safety, she said. Anyone charged with murder will not be eligible.

And she will order charges be dropped against anyone who has waited more than 60 days for a lawyer, with the clock starting Friday.

Victims’ rights advocates are concerned about the possible repercussions of Murphy’s ruling, especially those in domestic violence cases. Roughly 26% of the state’s unrepresented cases as of Wednesday were DV-related.

Andrea Mancuso, policy director for the Maine Coalition to End Domestic Violence, said she finds it unlikely the commission will solve the crisis in the next 30 days when it’s failed to do so for several years.

“Victims of crime will bear the consequences of that failure,” she said. “This is dangerous for victims. More victims of domestic violence will experience the criminal justice system as unable to help them be safe. This was all completely foreseeable.”

DATA IS CHANGING

There were at least 480 criminal cases without an attorney as of Wednesday, according to a list regularly updated by the courts. Roughly 45% of those defendants, in and out of custody, had been on the list for at least two months.

About 110 were in jail, and nearly 40% of those people had been waiting at least 14 days.

During a meeting on Feb. 27, the commission’s director, Jim Billings, said this number was “gross and unacceptable,” but that it still pales to the increase in open cases that a dwindling number of defense attorneys have been handling since before the pandemic. There are currently about 6,000 more pending cases than six years ago, according to court data.

“Even though we have about six hundred people without a lawyer in the state who are otherwise entitled to a lawyer … that is 10% of this 6,000 number,” Billings said. “Which means that the rostered number of attorneys in our program are carrying 90% of those extra cases. I don’t think that gets talked about enough.”

“It’s a wonder that we don’t have two or three thousand people unrepresented in our system as it is currently constituted,” he said.

Jim Billings, executive director of the Maine Commission on Public Defense Services, at his office in Augusta. Joe Phelan/Kennebec Journal, file

Some have complained that there aren’t enough lawyers taking cases because the commission’s eligibility standards are too strict. Gov. Janet Mills has urged the commission to roll back its regulations, which the commission says were put in place to ensure quality representation.

The ACLU of Maine’s lawsuit has actually been divided into two phases, the second of which relates to effective representation. Murphy plans to address those claims later on.

The number of unrepresented defendants has also declined since Murphy heard testimony from the commission in late January. Some say that’s a testament to the impact Maine’s new public defenders are already having on the crisis.

Toby Jandreau is the supervising “district defender” for the Aroostook County office, where there were only 22 unrepresented defendants as of Wednesday, down from roughly 80 in late December.

“We’re seeing fewer of them,” Jandreau said at the meeting. “I think with time, it’s going to get better.”

Defense attorney Robert Ruffner, who represents many of these people temporarily for first appearances, said he’s also noticed the decrease. But he doesn’t think the commission will suddenly solve a crisis that “has been building for years,” and he’s sure there will still be people who need to be released or their charges dropped in a month.

“I do not expect that the need for this remedy is going to go away, in the next several months,” Ruffner said Friday. “And certainly, the fact that the framework is in place should be ample reason for those in power to ensure that we never end up here again.”