More than 20 defendants in Aroostook went weeks without a lawyer and wrote memos
More than 20 Aroostook County felony defendants have gone more than 1,300 combined days without a designated attorney despite being deemed eligible by a judge, according to a memo from the Maine Commission last month. on legal services to the indigent.
Clerks assigned attorneys who were ineligible according to the commission’s list, and attorneys were assigned “retroactively” to the day a judge granted a defendant’s motion for legal representation, not to the time the attorneys have actually begun to represent the defendant.
The memo lists 23 people whose legal aid applications were granted by a judge and who spent an average of about 60 days waiting for a lawyer. MCILS staff were able to break down the number of days that 22 of these individuals went without a lawyer, with the highest being 231 days.
But these were only the defendants whose granted motions were included in the court records.
“It is not known how many defendants have made motions for counsel that do not appear in court records,” the memo said.
The memo, dated June 7, “is not final” and does not contain any official policy statements or conclusions, executive director Justin Andrus said Friday.
“To the best of my knowledge, the facts set forth are accurate through June 7,” Andrus wrote in an email Friday. “The document does not reflect the ongoing efforts of the Clerks and MCILS to keep things running smoothly.”
The commission says all Aroostook County cases are now staffed.
When called Friday for an interview about the commission memo, a clerk at the Aroostook County Superior Court in Caribou referred a reporter to the state’s Administrative Office for Courts. Court administrator Amy Quinlan said in an email to the Press Herald that she may have more information next week.
Maine is the only state in the country without a public defender’s office. Although state lawmakers agreed in the last legislative session to create the state’s first office for rural public defenders, most cases will still be covered by reimbursing private attorneys who sign up to represent Mainers who can’t afford their own lawyers.
Andrus said the memo was shared in response to public records requests from numerous entities, including the Portland Press Herald, seeking more information about 18 people who went months without a lawyer in Aroostook County. Commission staff discussed this at a meeting on May 24th.
Attorney Darcy Fisher prepared the commission memo about a month after it began analyzing data from Aroostook County courts and jails.
On April 8, commission staff reviewed an April 1 prisoner list and found that there were 12 people in the Aroostook County Jail without attorneys, two of whom had been approved and nine others who had already been approved in previous criminal cases. On May 3, Aroostook County Courts released the names of 14 defendants who had not yet been appointed as attorneys at that time.
DO NOT USE LIST
The memo says Aroostook County clerks had not used a list of eligible and available attorneys provided by the commission. Instead, clerks emailed individual lawyers, some of whom were unable to handle the work assigned to them.
“In some cases, clerks only speak to one or two lawyers, even when there are many more lawyers on the list,” the memo reads. “Meanwhile, the defendant – whose motion to appoint counsel has been granted – is not having an attorney appointed.”
Sometimes, after finding a lawyer, court clerks appoint the lawyer “retroactively” to the date a judge approved the appointment of a lawyer.
“This is problematic for several reasons,” the memo reads. “First, the defendant was deprived of his constitutional right to counsel by the court. Second, there is no record of this deprivation because the court record is inaccurate (that’s to say, the record indicates that an accused had a lawyer during a period during which he did not in fact have a lawyer).
Judges orally appointed lawyers from among the judges, the memo also notes, but then it would take months for the court to send a written notice of appointment. Sometimes a judge orally appointed a lawyer and the written notice mentioned a different lawyer.
“Uncertainty as to whether counsel has been appointed results in an implied denial of counsel because attorneys do not know for certain whether they have been appointed until they receive the notice of appointment” , says the memo.
Andrus said the commission will continue to remind attorneys who are assigned to a case and wish to step aside that they are still involved until a new attorney is appointed and actually begins work.
DATA EXCHANGE OFFERS HOPE
He also said the commission hopes to initiate a data exchange with Maine’s judicial branch so that commission staff can see which defendants in the state do not have attorneys.
The memo lists a handful of occasions when attorneys filed for withdrawal and a defendant went weeks without hearing from their newly appointed attorney.
In March, the American Civil Liberties Union of Maine announced that it was suing the commission for systemic failures and failing to meet its Sixth Amendment obligations. A judge ruled in May that the case would proceed and has yet to decide whether the six plaintiffs incarcerated in the case will receive class certification, which means they will represent defendants statewide.
“Most of our legal action focuses on what happens after an attorney is appointed,” said Zachary Heiden, legal counsel for the ACLU. “But it’s a problem even before that, and bigger than that. If someone doesn’t get a lawyer at all, that’s in many ways an even deeper and more serious constitutional violation.