Jan. 9—First there was a woman who spent a week in the Washington County Jail. Another spent 80 days locked up in Aroostook County.
They are among the hundreds of people in the last two years who faced serious criminal charges and didn’t receive the court-appointed lawyer they were entitled to. So they stayed in jail.
Judges denied requests to drop the charges against them or to release them, even as one justice acknowledged an “ongoing crisis.”
On Friday, Superior Court Justice Michaela Murphy delivered a pivotal ruling: Maine is denying the constitutional rights of hundreds of defendants statewide, many of whom have waited months for counsel.
She is the first to rule that this is a statewide problem, and it could get a widespread remedy. That might include releasing people from jail if they have waited more than a few days for an attorney, or dismissing their cases entirely.
“It’s gratifying to have the court agree that it is in fact a problem, that this is a violation, that we haven’t been able to assign counsel at initial appearances the way we’re supposed to,” said defense attorney Rob Ruffner, who advocated that both women be released after learning they were unrepresented. His motions led to them eventually getting lawyers.
Judges across Maine have granted relief in individual cases. But Murphy’s order is the first to call for something more expansive. She has scheduled a multiday hearing for later this month to consider exactly what kind of relief the Maine Commission on Public Defense Services, which finds and oversees attorneys for judges to appoint, will be ordered to provide.
Meanwhile, some commissioners have criticized the defense put on by a state attorney tasked with representing them.
THREE-YEAR CASE
Murphy’s ruling is a turning point in a nearly three-year lawsuit against the Maine Commission on Public Defense Services, a quasi-state agency that is tasked with overseeing public and private attorneys who represent Mainers who cannot afford their own attorney.
The American Civil Liberties Union of Maine sued the commission in 2022 on behalf of several criminal defendants who said they weren’t being given effective representation. That lawsuit was updated last year to include those who had not been appointed an attorney.
All seven commissioners and their executive director, Jim Billings, are named as defendants. The entire state of Maine is also named, but so far Murphy has ruled only on the commission’s liability.
Murphy considered arguments from the Office of the Maine Attorney General, which is defending the commission in this case. Some in the agency were frustrated by this Tuesday, given that the same office is often at odds with their defense attorneys in court.
Assistant Attorney General Sean Magenis has denied there being any problem and argued that the commission’s lawyer-of-the-day program, which provides temporary counsel for select hearings, is enough. Murphy disagreed.
“The commission itself is said to have adopted this position, which we haven’t, frankly,” said Commissioner David Soucy, a former Maine District Court judge. “We’re in a position where we do not have access to, we do not have a right, to bring forward our own attorney, to say what we think.”
A spokesperson for the attorney general’s office said this week that they were unable to address the commissioners’ comments.
POSSIBLE RELIEF
Murphy has set aside three days, Jan. 22 -24, for both sides to present testimony about what remedies can be ordered to address the crisis.
The ACLU has asked that unrepresented defendants be released from jail after seven days without an attorney — and that their cases be dropped after 45 days. They also ask that the commission develop and quickly finalize a plan for how they will get people attorneys.
During a meeting Tuesday to discuss their annual report to lawmakers, some commissioners were concerned that Murphy’s order might “highjack” their planned requests for the next state budget. A copy of that report was not available Wednesday afternoon.
The commission might also be restrained by the governor’s call for a lean budget. But Billings, the director, told the commission that he will advocate for as much as he needs, regardless of what Mills is planning to propose.
“If I get removed, so be it, but I’m not going to be feeling constrained by whatever’s in the administration’s budget when I’m in front of a legislative committee, and I’m being sued, and the state is already being found to be violating the Constitution,” he said. “I’m not going to be constrained by what any other actor in state government says we need. I’m going to say what I think we need.”
Some defense attorneys were gratified that Murphy has acknowledged the problem and could impose deadlines for representation, but they also feel her order only addresses a small piece of the puzzle.
“It fails to bring into the discussion the failures of Maine’s judiciary and its prosecutors to address the crisis of thousands of cases pending in the state, that are above and beyond the amount it was before the pandemic,” said Tina Nadeau, director of the Maine Association of Criminal Defense Lawyers.
Even if people are released from jail, the time they spend without a lawyer means their defense could be more difficult to mount, she said; they don’t have an attorney gathering evidence or scrutinizing the allegations against their clients.
Nadeau said the order does nothing to address the increasing number of pending cases. There were nearly 56% more felony cases pending in Maine at the end of 2024 than in 2019, according to data from the courts.
But Shira Burns, who directs the Maine Prosecutors Association, said prosecutors have significantly cut down on the number of new cases they open over the last decade. She highlighted their advocacy for the reclassification of certain nonviolent crimes as civil violations, and pointed to a pandemic-related backlog that’s straining all parties in the system.
“There should be the basic recognition that Maine has one of the lowest crime rates in the nation,” Burns wrote in an email. “There is always more work to be done, but our base numbers start low when compared to other states.”
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