State courts confront crisis on multiple fronts

Jail recordings of attorney-client phone calls and defense lawyer shortages are among the top concerns.

by | January 1, 2023

Photo by Andrew Howard.

Maine saw a court system in crisis in 2022.

Record-low participation by lawyers in the state’s public defense system, a class action lawsuit and a public reckoning about county jails recording confidential attorney-client phone calls were among the top stories followed by The Maine Monitor. State lawmakers have attempted to address some of the systemic problems but more remains to be done. 

Valerie Stanfill, the chief justice of the Maine Supreme Judicial Court, declared in November that the courts were failing. 

“We are failing in this state in our justice systems — criminal and civil, to be honest,” Stanfill said.

A tremendous backlog of open cases continues to gum up the criminal courts from the COVID-19 pandemic and beyond. 

Maine also saw record-low numbers of lawyers available in 2022 to accept new court-appointed cases through the Maine Commission on Indigent Legal Services, or MCILS, which is the state’s alternative to public defenders. An analysis in August revealed that 33 lawyers contracted with MCILS were managing nearly half of all open indigent cases statewide, the Monitor reported

Shortages of available defense lawyers for the indigent have persisted with 148 lawyers accepting court-appointed cases, including just 65 lawyers accepting new adult criminal clients as of Dec. 28, according to MCILS. Court clerks in nearly half of Maine’s counties were unable to find a qualified attorney to work on a case during October and multiple county courts continued to have problems finding available lawyers to take cases through the end of the year, emails show.

Gov. Janet Mills, a Democrat, recently told Maine Public radio that private law firms need to play a bigger role in addressing the defense crisis. 

“I want to encourage every law firm in the state of Maine to help us out here, get us over the hump. And I want to encourage law firms to designate lawyers in their firm to do work for indigent defendants. Honestly, it not only provides a social service and a constitutional service — a public service — it also gets people in the courtroom. And it provides an experience that you’re not going to get otherwise to become a good lawyer,” Mills said.

Experienced criminal defense lawyers have publicly pushed back, saying these cases require specialized skills.

Legislative leadership and Mills also didn’t respond to a request in September to host a special session of the state Legislature. MCILS commissioners had proposed $13.3 million of emergency funding to increase pay for court-appointed defense lawyers from $80 to $150 an hour — to attract more lawyers to accept cases. No special session was held. 

The attorney general’s office went to court this year to defend Maine’s unique model of public defense against a class action lawsuit filed by the ACLU of Maine. The civil rights organization is representing several low-income defendants who alleged they were receiving ineffective legal help because of the state’s failure to create a system that adequately trains, oversees and pays lawyers. The litigation is ongoing.

A bipartisan coalition of lawmakers passed last-minute funding earlier in the year to hire the state’s first public defenders. The five public defenders will be part of a roaming Rural Defender Unit that will work directly on cases in counties where there are not enough lawyers. Lawyers have been hired for all five positions and have begun working, said Justin Andrus, the MCILS executive director.

Prosecutors, law enforcement and lawmakers proposed multiple reforms after a yearlong investigation by the Monitor revealed county jails had routinely and repeatedly recorded confidential phone calls between jailed defendants and their attorneys, and sometimes shared those recordings with police and prosecutors before trial.

Maine State Police detectives received and listened to parts of confidential phone calls between three jailed murder suspects and their lawyers before the case went to trial or was settled this year. The Aroostook County Jail also was discovered to have recorded 304 phone calls between one lawyer and 49 of his jailed clients between 2019 and 2020 — dozens of which were listened to, the Monitor reported. Sheriff Shawn Gillen said access to the jail’s telephone recordings is now limited.

A legislative study group formed in the wake of the Monitor’s reporting recommended policy changes across state government to reduce the likelihood of recording or releasing recordings of private calls. But the group fell short of defining how to enforce the proposed changes or penalize jails that record and share confidential calls in the future. 

State lawmakers are expected to consider several of the group’s recommendations in early 2023. 

 

Samantha Hogan reports on the criminal justice system and government accountability for The Maine Monitor. Reach her with story ideas by email: samantha@themainemonitor.org

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Samantha Hogan

Samantha Hogan

Samantha Hogan focuses on government accountability projects for The Maine Monitor. Samantha, who was named 2021 Maine Journalist of the Year by the Maine Press Association, joined The Maine Monitor as its first full-time reporter as a 2019 Report for America corps member. She spent 2020 reporting exclusively on Maine's court system through the ProPublica Local Reporting Network. Samantha previously worked for The Frederick News-Post, covering state politics, agriculture, the environment and energy, and interned twice for The Washington Post.


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