At least two Maine judges have directly assigned public defenders to represent people accused of crimes, bypassing a process the state created more than a decade ago that discouraged judges from picking lawyers for defendants.

In a couple of orders last month, District Court Judge Sarah Churchill in Lewiston assigned attorneys to represent three defendants who had waited more than a week to get a lawyer. Another judge in Bangor appointed a public defender to a case in October, but scrapped the assignment after learning there was a conflict of interest.

These orders came as roughly 300 criminal defendants were waiting to receive a court-appointed lawyer. The state has been dealing with a constitutional crisis for more than two years now, which is one focus of an ongoing lawsuit against the state by the American Civil Liberties Union of Maine that’s now being considered by Maine’s highest court.

Even with more than 30 newly created public defenders active throughout the state, courts still rely on private attorneys who sign up for certain types of cases and are reimbursed for their work.

Defense leaders worry that appointments made without first going through Maine Commission on Public Defense Services — an independent quasi-state agency — will overwhelm defenders and impact whether judges are seen as neutral.

“There is a problem, an inherent structural problem, if you have a judge choosing in a case who the particular attorney is going to be,” said Frayla Tarpinian, the commission’s executive director. “It brings into question their neutrality and the appearance of their neutrality, and that’s something we can’t have in our system.”

Judges, however, have argued in court records that they have the authority to directly appoint public defenders to people who have a constitutional right to legal representation.

Churchill wrote in her orders that she felt the defenders from the Lewiston office could do more to help, as hundreds of defendants around the state are languishing without representation, including some who are in jail. In some cases, she said public defenders were carrying a much smaller caseload (between 27 and 32) than some private attorneys (between 80 and 180).

“These case numbers are better data and evidence of capacity than any other information available to the court,” Churchill wrote.

The courts and the Maine Commission on Public Defense Services have been maintaining a regularly updated list of defendants throughout the state who need representation, including how long they’ve been waiting and their charges.

Tarpinian said Monday there were 299 people on the list, although she noted it changes frequently as lawyers are found and new cases are added.

BACKLOG FROM THE GET-GO

Tarpinian said the state only agreed to fund enough public defense positions to cover roughly 30% of all adult criminal cases in the state.

Maine still relies heavily on contracted private attorneys, although the commission has warned it will run out of money to pay those lawyers by the spring. Sen. Anne Carney, D-Cape Elizabeth, has introduced emergency legislation to make up for that shortfall.

Tarpinian, who was recently promoted to director after leading the public defense office in Augusta, said Churchill’s orders show the commission needs to improve how it communicates with the court about the defenders’ capacity, how cases are being screened and why some aren’t being accepted.

Jesse Archer, who leads the Tri-County public defense office in Churchill’s district, said the caseload counts are misleading because they don’t break down which cases are felonies, rather than misdemeanors, and which cases were trial-bound or recently filed.

Archer said his office accepts cases after private attorneys have been offered first pick, and they are often serious crimes involving violence.

“There’s not a single person in here that’s dilly-dallying or twiddling their thumbs,” Archer said. “We only get paid 40 hours. We’re not an agency that has the ability to get paid overtime … believe me, the people here do work that they’re not getting paid for.”

Archer also said the backlog of cases needing lawyers has decreased in his area since the defenders started working. A private attorney who has been tracking the issue closely in Androscoggin County, Mitchell Roberge, said he has noticed defendants are spending less time waiting for court-appointed lawyers than they were last year when the crisis was worse.

Roberge said Churchill’s recent orders have concerned some private attorneys doing public defense work and could discourage some from signing up for court-appointed cases.

“They see that, and they say, ‘I’m worried that’s where the system is going,'” he said. “I think the general public needs to care more about this.”

A spokesperson for the Maine Judicial Branch said they are aware of the orders and the debate, but declined to comment.

“It is not appropriate for anyone in the Judicial Branch to comment, either on or off camera, on the decisions or the underlying legal principles for the decisions,” Barbara Cardone wrote in an email.

NEW DEFENDERS, NEW RULES?

Churchill and a District Court judge in Bangor, Harris Mattson, have both said the Judicial Branch has the authority to directly appoint defenders, who are state employees, arguing that the rules for court appointments only apply to private attorneys.

Mattson issued an order in October, directly appointing Logan Perkins to a case in his court. Perkins oversees the Highlands Region public defense office, which covers Penobscot and Piscataquis counties.

Mattson agreed to void the order after learning there was a conflict of interest, but he pushed back when Perkins argued that judges don’t have the legal authority to directly assign public defenders to cases.

Under the state’s rules of unified criminal procedure, attorneys appointed by a judge “must be designated by the Maine Commission on Indigent Legal Services as eligible to receive assignments for the type of case to which counsel is assigned,” referring to the public defense agency by its former name, when it oversaw private attorneys. The rules state that the commission will either accept the court’s initial assignment or substitute another lawyer.

Mattson said because the rules that Perkins cited referred to the commission by its old name, they only applied to private attorneys, not newly created state-employed defenders.

“And the courts have a definite and active role in guaranteeing that the right to counsel is realized,” he wrote.

Perkins said in an interview this week that her office’s independence is “a really clearly established tenet of public defense organizations and management.”

“We have to be independent of the judiciary,” she said. “Because if the judiciary could just decide to appoint whatever cases they want to us, however many cases they want, at any point in time, whatever type of case — if they get to decide what our caseloads should be, we lose the ability to deliver competent, zealous representation to our client. And that’s our job.”