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Lawmakers order investigation into Maine's state-appointed criminal defense lawyer system

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Published: Dec. 10, 2019 at 5:17 PM EST
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The Maine Legislature's Government Oversight Committee voted Tuesday to conduct and investigation into the state's unique system for providing attorneys to people who cannot afford them.

The Office of Program Evaluation and Government Accountability will conduct the investigation on the committee's behalf.

Maine is the only state without any public defender system. Instead, defendants who can't afford a lawyer get one appointed from a pool of 420 private lawyers who have volunteered for the task through the Maine Commission on Indigent Legal Services.

GOC Chair Sen. Justin Chenette said OPEGA will look at the financial management and oversight practices of MCILS.

The investigation will seek to determine if fraud, waste and abuse occurred and how to prevent it moving forward, Chenette said in an email. He said the investigation will be completed within the next year or possibly sooner.

A report by the Boston-based Sixth Amendment Center found those lawyers managed by the MCILS are overworked, underpaid and poorly supervised.

"The Sixth Amendment right to counsel means every person who is accused of a crime is entitled to have an attorney provided at government expense," the report said. "The appointed lawyer needs to be more than merely a warm body with a bar card."

As an example of the excessive workload, the report found that a court-appointed "lawyer for the day" handling arraignments at Cumberland County Superior Court, in Portland, may see up to 40 new criminal cases, and if a defendant remains in jail, he or she may get a new lawyer at the next court appearance.

"The new lawyer assigned to you has no idea what happened. So, you're not getting continuity of counsel," State Rep. Jeffrey Evangelos told WMTW News 8 in an interview last week regarding indigent legal services system.

Most troubling for Evangelos are occasions when indigent defendants waive their right to counsel and negotiate plea deals themselves.

"You're a defendant without any money, and you can't hire a lawyer and here you are negotiating with the power of the state, with the prosecution on a plea deal, without the advice of counsel. Oh, no, that's definitely wrong. We're going to fix it," Evangelos said.

The state legislature currently allocates about $20 million a year for Maine's appointed defender system, according to MCILS executive director John Pelletier, who said the budget has remained flat for the past four years.

By comparison, government funding for criminal prosecutions by the state attorney general and the state's eight district attorneys is $27.5 million, according to Marc Malon, spokesman for Attorney General Aaron Frey.Prosecutors also have access to the resources of police and sheriffs. There are nearly 17,000 new criminal cases a year in Maine where adult criminal defendants qualify for a state-provided lawyer, according to Pelletier.

Those lawyers said they're committed to the work, even though the fees they receive cover only a fraction of their costs.

"We are proud to serve the indigent population, and we do it well.Every day we give it our all," said Amy Fairfield, a York County-based attorney whose practice has centered on court-appointed work for 15 years. "We are not making a lot of money. We operate on a shoe string."

Maine pays appointed defenders $60 an hour. By comparison, South Dakota, with a lower cost of living, pays $95 an hour, and private attorneys in Maine typically bill clients more than $300 an hour.

"I think that we have delivered consistently year after year a top criminal defense system here in Maine," said Augusta-based defense attorney Walter McKee, a former president of Maine Association of Criminal Defense Lawyers.He spent 10 years doing court-appointed work.

"So, $60 an hour is for everything -- all of your overhead, your secretary, your rent, your lights, all your paper, everything you need," McKee said."It's $60 an hour, but the net is far less than that."

MCILS has a staff of only three people to assist hundreds of appointed attorneys who work in 47 courthouses throughout the state, and the Sixth Amendment Center report found direct oversight to be lacking, especially when it comes to billing.

In fiscal year 2018, 25 state-appointed defenders billed, on average, more than 40 hours per week, while still representing private or federal criminal clients, according to the report, and the top biller submitted time cards averaging 88 hours a week.

"That is very much the exception -- definitely not the rule," McKee said. "There are outliers in every single system in every single state, even ones that have a robust public defenders' system."

Fairfield came under scrutiny for billing MCILS $162,000 for her representation of Anthony Sanborn, who was freed from prison in 2017 after serving 27 years for murder.

"How do you put a price on someone's life?" she asked.

Fairfield said she and her co-counsel worked on Sanborn's appeal for two years, conducting 300 interviews, reviewing 30,000 pages of documents and attending five weeks of court hearings.

"We don't have the resources the state brings to bear," Fairfield said."We could all go off and do more lucrative work, but we are committed to serving this underprivileged and vulnerable population."

A fully funded public defender system is one reform option, but that would cost more than the current system, and McKee is skeptical the political will for that exists in Augusta.

"We don't want to talk about it, unless you are actually going to say you are going to put the money in," McKee said.

Evangelos, a member of the legislature's judiciary committee, plans to co-sponsor a reform bill that he expects will be considered next month.

"You put all these pieces together -- an uncounseled defendant, a defense system that's overwhelmed and a process that's not working well. This is how you get innocent people convicted. One innocent person in prison is too many," Evangelos said.

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