Advisors to Maine’s public defense system were expected to finalize a package of reforms on Tuesday to share with state lawmakers next month but instead learned that they had missed a deadline to submit rule changes by more than five weeks, delaying major changes until at least 2021.
Assistant Attorney General Megan Hudson surprised several observers when she announced that the Maine Commission on Indigent Legal Services would not have time this legislative session to submit proposals for major rule changes, including to strengthen attorney qualification for court appointments to criminal, juvenile and child protective cases. The rules needed to be submitted before Jan. 17.
Commission chairman Josh Tardy said it was a misunderstanding on his part of the timing to amend the commission’s rules so that they could be enforced this year. The commission will, however, continue to work on new rules and plans to submit them for the 2021 session, he said.
Robert Ruffner, whose law practice in Portland is dedicated almost exclusively to the defense of Maine’s poor, was baffled by the announcement.
“How the f— did we get to this point?” Ruffner said after Hudson’s announcement. “How the hell — when we began in the summer — did we get to the point that it’s too late to do friggin’ anything?”
The commission voted to increase training of new lawyers from a 1½-day seminar to a five-day conference and increase the number of attorneys available to assist defendants at an initial appearance by 25 to 50 percent. But Tardy did not call for votes on proposals to open a statewide appellate and trial-level public defender office in Cumberland County or to enhance the commission’s auditing of attorney billing.
The decisions made Tuesday were far from the scale of reforms expected to be undertaken in 2020.
The eight members of the commission have met monthly since August 2019 and more frequently since dividing into subcommittees in December to prepare proposals for statutory changes that would improve the public defense system in 2020. Much of the work has been done while under warning from the American Civil Liberties Union of Maine that if it did not address constitutional problems in the existing system, the state could face a costly lawsuit.
The Judiciary Committee expects to receive those recommendations during the first week of March, but absent votes on the majority of the proposals it was not evident what guidance the commission will provide.
Judiciary chairman Sen. Michael Carpenter (D-Houlton) said at this point, he anticipates substantial changes to Maine’s public defense system, but not this year.
Zach Heiden, Legal Director for the ACLU of Maine, said he had anticipated the commission would make concrete recommendations on Tuesday, which the Judiciary Committee could put in a bill carried over from last session. He also expected there to be guidance on how to implement those recommendations.
The ACLU is looking for “forward progress,” Heiden said. The commission has shown progress on improving attorney training and beginning to review practice standards, he added. He has not seen progress on the issue of attorney oversight, which is one of the ACLU’s top concerns with Maine’s system.
The commission floated the idea — without actually voting — of expanding the role of its Resource Counsel to oversee and evaluate attorneys’ performance. Commissioner Robert LeBrasseur, who serves as the mentor in Cumberland County, was initially supportive of it if the commission created a form and guideline for the oversight.
Commissioner Sarah Churchill said that the commission should be cautious of handing off its responsibility to the private bar.
Public defender debate reemerges
Maine is nearing the one-year mark of the release of a report by the Boston-based nonprofit Sixth Amendment Center, which criticized the quality of the representation the state currently provides to the poor. The report noted that newly licensed, inexperienced trial lawyers can sign up to represent defendants at risk of going to jail with little or no mentorship or oversight by the state.
States are constitutionally required to provide an attorney to anyone who cannot afford to hire their own and is at risk of going to jail. There are three models states use to provide this constitutionally mandated defense, including a public defender, contract counsel — which Maine used in Somerset County until July 2019 — or court assignments. States may use one or a mixture of two or three systems of defense.
Maine is the only state that still relies entirely on the court assignment of private defense counsel.
In the weeks leading up to Tuesday’s meeting, it became increasingly obvious that some members of the commission were in support of transitioning one or more of Maine’s counties from as assigned counsel to a public defender model.
Commissioners Bob Cummins, a former Illinois public defender, and Ron Schneider, a litigator with Bernstein Shur in Portland, announced support for New Hampshire’s public defender model, in which the state contracts with a private nonprofit that provides the services of a public defender office. They outlined why Maine should do the same in an eight-page memo on Tuesday.
“It’s hard to imagine how anyone can argue we can live with the set-up we have now. It’s not working effectively,” Cummins said in an interview with the Maine Monitor the Friday before the meeting. “The legislature was very sound in reaching out to have the Sixth Amendment Center report — and now it’s time to act on it.”
It is a perennial question in the state legislature whether Maine should shift away from its unique system of providing public defense.
In 1988, a special subcommittee of the Judiciary Committee studied the financial feasibility of switching to a statewide public defender system and concluded that there was not a clear advantage to the change. The study estimated it would conservatively cost $5.35 million — $8.4 million today in inflation-adjusted dollars — which would be a “substantial increase in appropriations,” with “very little support” from attorneys already participating as assigned attorneys at the time.
The study predated the formation of MCILS in 2009 by more than 20 years. At the time, judges were determining whether defendants were indigent, selecting their attorneys and determining the assigned attorney’s final compensation.
The study noted that Maine had artificially kept costs low by giving judges the authority to reduce attorneys bills and capping the maximum fees for certain case types.
“It felt very arbitrary in that I think certain judges just cut certain things all the time,” said Donald Hornblower, who has split his time between retained and public defense cases since he began practicing law in 1991.
Under MCILS, Hornblower said there has been more support for lawyers to “be lawyers” and be paid as billed for their work on a case.
In 2014, after MCILS had been operating for four years, the Office of Policy and Management again looked at whether Maine should switch to a statewide public defender model and concluded that establishing eight public defender offices parallel with the eight prosecutorial districts would better meet the state’s constitutional requirements and improve attorney oversight. The authors contended that it could be done within the commission’s existing budget of $15 million.
Hornblower said he would not apply to be a public defender if the state changed its defense system. In Androscoggin County, where his practice is based, it would be “a tremendous loss” for defendants to switch to a public defender office.
The Maine Association of Criminal Defense Lawyers declined to comment.
Opening a state-run trial-level public defender office just in Cumberland County was estimated by the Sixth Amendment Center to cost $3.04 million, including $2.4 million annually to fund 12 assistant public defenders, a chief public defender, deputy public defender and support staff.
Chairman Tardy said he and the commission appeared to be seriously considering the switch to a public defender system but were still settling on a state or private nonprofit model. Funding would need to be addressed during the biennial budget process.
“If it’s going to be accomplished, it’s going to be accomplished in a biennial budget proposal. That’s just how things work around here,” said Tardy who served eight years in the state legislature and continues to work as a lobbyist.
The commission is earmarked to receive $2 million of the governor’s $126 million supplemental budget to make up a known funding gap — not due to an increase in spending — Commissioner Kirsten Figueroa of the Department of Administrative and Financial Services said at a joint meeting of the Appropriations and Judiciary committees also on Tuesday.
The commission’s Executive Director John Pelletier asked the lawmakers to also consider a request for two additional staff positions, which did not make it past the first round of cuts to the supplemental budget. This is the first time the commission has requested a staffing increase for its four-person central office in its 10-year existence.
Investigations into financial oversight continue
Ongoing in the background is an open investigation into the commission’s financial oversight. The Office of Program Evaluation and Government Accountability (OPEGA) is currently undertaking a review of how the staff at MCILS processes payments and whether it has systems in place to identify intentional overbilling by attorneys. The report is expected to be released in April.
The request for more money did not sit well with Rep. John DeVeau (R-Caribou), who asked Pelletier whether he would be staying on as executive director. Appropriations chair Sen. Cathy Breen (D-Cumberland) immediately interjected that they did not discuss personnel matters in open session.
Carpenter said after that it was the commission’s job, not the legislature’s, to evaluate Pelletier’s performance. His focus was on accountability — both financial and the quality of representation — and training provided by the state to public defense attorneys.
“I think the fear here is that with an election coming up, you could lose the momentum of the Sixth Amendment report,” Carpenter said. “I wish we had time to put together a series of concrete legislative changes.”