ACLU, state agency near settlement plan on legal representation for indigent clients

Agreement appears to be contingent on state budget negotiations.
A bronze statute of a scales of justice figurine.
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Maine’s public defense agency for the poor and the ACLU are nearly ready to present the court with a settlement plan on how to improve legal representation for criminal defendants, attorneys for both sides said Friday during a brief hearing in Augusta.

Significant progress has been made on the agreement “on the terms within our control,” but there remains “two external conditions that need to be satisfied in order for this to happen,” Carol Garvan, legal director of the ACLU of Maine, told Superior Court Justice Michaela Murphy.

The ACLU of Maine filed suit against the Maine Commission on Indigent Legal Services, or MCILS, on March 1, 2022, on behalf of impoverished criminal defendants, alleging that the public defense agency failed to create an effective public defense system in violation of their constitutional rights.

The settlement agreement, the details of which were not disclosed Friday, apparently hinges on the outcome of state budget negotiations, as well as an information sharing agreement between MCILS and the Administrative Office of the Courts, or AOC.

Both sides have “jointly advocated” for the legislature to increase MCILS’s funding, Sean Magenis, the assistant Attorney General representing MCILS, told the court. Democrats passed a partisan baseline budget of $9.8 billion on March 30 that did not include funding for new initiatives, such as hiring additional public defenders. Last year, the state started a pilot project that hired five public defenders.

Lawmakers were expected to negotiate the second part of the budget this week but delays and lengthy debates have put both chambers far behind schedule.

“I would anticipate that there’s going to be many millions of dollars that are going to have to be coughed up by the state to fund the system,” Robert Cummins, a career defense attorney and former MCILS commissioner, said Friday.

Cummins was appointed in 2019 by Gov. Janet Mills to serve as one of eight commissioners appointed to oversee the MCILS. He resigned in April 2022.

In his resignation letter, Cummins said he faced an “irreconcilable conflict” between his professional career and the state’s commitment to improving its indigent legal defense system.

Cummins said Friday after the hearing that, “if the money’s not there, if adequate funds are not there, then the whole purpose of the litigation would be for naught. It would be meaningless.”

Still, he said he was “confident” that Murphy would not approve the settlement if and unless it “meets the needs of this state when it comes to the Sixth Amendment,” which guarantees the right to legal representation.

Representatives from both sides in the settlement talks did not return requests for comment on Friday.

Magenis told the court he expects as the legislative session comes to an end, “we’ll be more focused” on discussions between MCILS and the AOC. He said information sharing will affect MCILS’s “technical ability to obtain case information on a significantly more real-time basis than is currently available.”

The outcome of those discussions will be “crucial” for the MCILS to fulfill some of the obligations outlined in the settlement agreement, Magenis said.

With the information sharing agreement and budget negotiations still in flux, Magenis said it would be “premature” to submit the terms of the settlement to the court just yet.

State lawmakers created the Maine Commission on Indigent Legal Services, or MCILS, in 2009 with the mission “to provide efficient, high-quality representation to indigent criminal defendants, juvenile defendants and children and parents in child protective cases.” 

Maine is required under the state and federal constitution to provide an attorney at the state’s expense to criminal defendants and parents accused of abuse or neglect who cannot afford to hire their own lawyer.

Maine was the only state in the country that did not employ any public defenders to meet this mandate until late 2022 when it hired five public defenders. Instead MCILS contracts private attorneys to represent the majority of defendants who could not afford to hire their own lawyers. 

In the first decade of operation, MCILS routinely contracted with attorneys who had criminal convictions or histories of professional misconduct, an investigation published in 2020 by The Maine Monitor and ProPublica found. MCILS also routinely didn’t enforce its own rules for attorney qualifications or ensure that lawyers were eligible to work on complex cases that they were assigned to by the courts, the news organizations found.

The ACLU claimed in the class action that Maine officials had not implemented rules, trained lawyers or compensated attorneys properly and had created an “unreasonable risk” that defendants would be denied their constitutional right to counsel.

Murphy agreed to extend the stay of litigation until the end of July. The next court appearance is scheduled for July 28.

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Samantha Hogan

Samantha Hogan focuses on government accountability projects for The Maine Monitor. She joined the newsroom as its first full-time reporter in 2019 with Report for America. Samantha was named the 2021 Maine’s Journalist of the Year by the Maine Press Association, and spent 2020 reporting on Maine’s court system through the ProPublica Local Reporting Network. Her reporting on county jails recording and listening to attorney-client phone calls won the Silver Gavel award from the American Bar Association and was also a semi-finalist for the Goldsmith Prize for Investigative Reporting in 2023. Samantha previously worked for The Frederick News-Post and interned twice for The Washington Post.

Emily Bader

Emily Bader is a health care and general assignment reporter for The Maine Monitor. She joined the Monitor in April 2023 from the Sun Journal in Lewiston, Maine, where she covered health care for two years and was a University of Southern California Center for Health Journalism Data Fellow. Prior to that, she was a staff writer for The Lakes Region Weekly in Cumberland County. Emily has earned several awards, including the Maine Press Association’s Bob Drake Young Writer Award in 2021, the New England Newspaper & Press Association’s Publick Occurrences Award in 2022 and most recently, the Maine Public Health Association’s journalism award. Emily was born and raised in Los Angeles and earned her bachelor’s degree in International Relations from Wellesley College.
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