Justice rejects settlement to overhaul indigent defense in Maine

Justice Michaela Murphy says proposed agreement in ACLU’s lawsuit would not be “judicially enforceable.”
An illustration of four overworked attorneys, as well as an inmate locked in a jail cell.
Illustration by Chloe Cushman for ProPublica.

Superior Court Justice Michaela Murphy on Wednesday rejected a proposed settlement in a lawsuit over indigent legal services, saying the agreement could “close the courthouse doors” for poor defendants and leave them little recourse if the state failed to provide lawyers.

Criminal defendants, who are not able to afford to hire their own lawyer, would be without a path to sue the state for a systemic failure to meet their Sixth Amendment right to an attorney, if she approved the settlement and paused the lawsuit for four years while the state worked on reforms, Murphy wrote in a decision released on Wednesday.

It was unknowable how many defendants could go without an attorney over the next four years, but the risks are too high, she wrote.

“What is at stake, depending on the evidence presented, could be the deprivation of the fundamental rights to due process and to liberty, and the failure on the part of the state of Maine to fulfill a core function of government,” Murphy wrote.

The ACLU and the state’s indigent defense commission are now being sent back to the drawing board to renegotiate a settlement as the lawsuit heads toward trial over how to overhaul Maine’s system of providing legal services to poor criminal defendants. Future proceedings are expected to be scheduled during a court hearing on Friday.

The Maine Commission on Indigent Legal Services, or MCILS, is responsible for providing a lawyer to every criminal defendant who cannot afford to hire their own. The agency does this by contracting with private defense attorneys and employing a few public defenders.

Lawyers for the ACLU and MCILS jointly filed the proposed settlement with the court on Aug. 21, the Monitor reported.

The agreement would have set new standards for lawyers, ordered a top to bottom review of how attorneys handle cases and called for future advocacy to add an unspecified number of public defenders to handle appellate and post-conviction cases.

Murphy expressed skepticism about the proposed settlement a week after receiving it, Maine Public reported. The agreement didn’t address existing issues, including the shrinking availability of defense lawyers to represent poor criminal defendants or their workloads, she said. 

“The court finds that the settlement agreement proposed here is highly unusual for class action litigation,” Murphy wrote. “It is not a judgment that can be entered on the docket or appealed. It is not a judicially enforceable consent decree. It is a four-year stay — or continuance — of the litigation which was intended to decide if the state of Maine has systematically violated class members’ Sixth Amendment right and their rights under the Maine constitution.”

The ACLU of Maine sued state officials 18 months ago for their alleged failure to create an effective system to defend adults who had been charged with crimes and could not afford to hire their own lawyers.

The ACLU of Maine could not comment about the court’s decision on Wednesday but repeated a statement it has previously released to the media. 

“The right to an attorney is not a luxury for the rich. It is a constitutional guarantee to us all. We are proud to continue this fight so all people in Maine may one day be treated equally under the law, no matter their wealth,” wrote spokesman Samuel Crankshaw.

MCILS Executive Director Jim Billings did not immediately respond to a voicemail seeking comment on Wednesday evening.

Murphy took specific aim at the state’s “Lawyer of the Day’ program. One or two lawyers are present to provide assistance during defendants’ initial appearance in front of a judge. 

The lawyer of the day’s representation of the defendant is “short-term” and does not usually extend beyond that first appearance, after which “Maine jurists can only hope that there will be a MCILS-qualified and rostered attorney to accept appointment,” Murphy wrote.

Murphy noted that there is no legal standard in Maine for how long a defendant can go without counsel after the lawyer of the day has represented them. News outlets have reported that the amount of time that defendants are waiting to be assigned a lawyer by the court is getting longer.

The Maine Monitor reported in mid-July that on at least one day more than 100 criminal and child protection cases did not have a lawyer appointed to represent the defendant.

In late August, MCILS stopped assisting the courts with finding available defense attorneys. Court clerks and judges are now solely responsible.

“Judges and clerks continue to make calls pleading with lawyers to take cases,” Murphy wrote in the ruling released on Wednesday. “This arrangement may work for the attorneys and for the courts, at least temporarily, but no one is monitoring how this improvising by jurists and the ongoing instability affects class members in terms of delay or adequacy of representation.”

Until late last year, Maine was the only state in the nation that did not employ any public defenders. Five public defenders now work as a roaming “rural defender unit” in areas of the state where there are not enough local lawyers to handle all of the criminal cases. 

State lawmakers approved funding for MCILS to hire additional public defenders this year and open the state’s first public defender office.

More money — to hire public defenders and open offices across the state — is ultimately the decision of state lawmakers. The rejected settlement had acknowledged this fact and promises for the ACLU and MCILS to work together to advocate for additional funding.

“It is MCILS’s obligation to maintain sufficient numbers of attorneys on their rosters, by case type, and the Judicial Branch is charged with appointing attorneys from these rosters,” Murphy wrote. “This means that the system is entirely dependent on the willingness of the MCILS-qualified, independent contractor attorneys to accept or not accept certain kinds of cases.”

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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.
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