Since opening his law practice on Lisbon Street in downtown Lewiston in 1990, Jim Howaniec has never been in a situation like the one he now faces. He has four murder cases awaiting trial, on top of 77 other cases. This week he will have 30 minutes to present to a judge the reasons why more than a dozen cases should go to trial in July, according to court records.
“It’s unbelievable. It’s almost ridiculous,” said Howaniec, a defense lawyer contracted by the state to represent indigent clients.
As courts reopen across Maine, defense lawyers are navigating a criminal docket unlike any they have experienced. Some lawyers are carrying loads of well over 100 cases and are being scheduled more often, and on conflicting days. Their clients have sat in jail or been released on strict bail conditions for more than a year. And shortages of defense lawyers accepting new cases have the system at a “breaking point,” Howaniec said.
A near complete stop to criminal trials last year contributed to a pileup of 26,600 felony and misdemeanor cases statewide as of May 2021 — an increase of more than 56% from just before the pandemic began, at the end of January 2020. In the past 12 months, the worst increase was 119% in unresolved felony cases in Penobscot County, but a 66% increase in Maine’s least populous Piscataquis County is also a concern. The backlog can be attributed to COVID-19, said District Court Chief Judge Jed French.
The pandemic stressed an already strained public defense system. The Maine Commission on Indigent Legal Services, or MCILS, is on track this fiscal year to appoint attorneys to a record-high 28,000 cases, up from 27,000 last year, which includes juvenile cases and others not captured in court data. MCILS contracts with private lawyers to defend adults and juveniles against criminal charges and other legal matters when they cannot afford to hire their own attorneys. Maine is the only state that operates a public-defense system that relies exclusively on private attorneys.
The commission anticipates a $4 million to $12 million budget shortfall, with the state potentially unable to pay defense lawyers in the next two years as the courts clear the backlog of cases, according to an analysis by MCILS interim director Justin Andrus.
Defense lawyers say the system is “crumbling.”
But while Maine Gov. Janet Mills has been critical of the agency for a myriad of problems, and the state Legislature is currently debating a multi-million dollar package to overhaul the system, proposals to bring about actual change for the state’s system for providing legal services to low-income defendants are rife with pitfalls.
Late last year Gov. Mills called for reform after an investigation by The Maine Monitor and ProPublica found that John Pelletier, the executive director who later resigned, regularly contracted attorneys with criminal convictions or histories of professional misconduct to represent the state’s poor. Mills said a lack of accountability and shortfalls in the state budget were reasons not to increase funding for MCILS. But even as the commission has implemented sweeping changes to how it does business and state revenue forecasts have improved, Mills has not budged.
For its part, the state’s Legislature, which is scheduled to complete its work by mid-June, will be voting on a $21.8 million package to overhaul the state’s defense system. If passed, it would be the state’s largest investment in public defense since the Legislature formed the agency 11 years ago.
Getting Gov. Janet Mills on board with more funding for MCILS is a “work in progress,” said Josh Tardy, the chairman of the commission. She has endorsed only an incremental change to the executive director’s salary and four temporary staff positions. Mills is encouraged by Andrus’ leadership since he became director in January and the commission is beginning to move in the right direction, said her spokeswoman, Lindsay Crete. But Mills does not plan to introduce more changes to the state budget at this time and she could veto any money the Legislature ultimately adds, which would require a majority vote of lawmakers to overturn.
A Proposal With Pitfalls
The $21.8 million proposal before the Legislature comes more than two years after the Sixth Amendment Center, a nonprofit of public defense experts, alerted lawmakers of severe problems with MCILS’s management, training and financial oversight. The legislation would enable MCILS to expand its auditing power and improve legal services to poor defendants, which would be significant progress, Tardy said.
But the legislation falls short of what the commission says it needs to make all the changes the governor and lawmakers are demanding. It adds six employees when commissioners said they need at least 14 people to staff offices dedicated to supervising, training and auditing of lawyers. The agency currently has four full-time workers who manage most operations statewide.
MCILS, at its current staffing levels, cannot do its job, said the director of the Sixth Amendment Center, David Carroll. He supports giving the commission and director a “critical” new power to subpoena witnesses and summon people to gather evidence for audits. He warned lawmakers that doing less could do harm and likely does not go far enough to fix MCILS’s problems.
“I still think they’re going to be short-staffed for providing proper oversight of both finances and effectiveness,” Carroll told lawmakers. “If you then cut (Andrus) off at the knees by not giving him this auditing function and subpoena power — you really have not accomplished anything.”
In committee, Democrats and Republicans brokered a compromise on the largest spending bill for MCILS and cut any new funding that didn’t have unanimous support. The bipartisan support should help move the bill through the House and Senate, where it will need support of two-thirds of lawmakers to take immediate effect as an emergency. The committee’s one Independent member voted against the cuts.
Rep. Jeffrey Evangelos (I-Friendship) said the Democrat majorities in both chambers made it likely that the bills would become law, but lamented that it had taken the Legislature multiple years to reach this point.
“We’ve performed slowly. Way too slow. And the reason why is nobody gives a shit about poor people,” Evangelos said. “That’s the sad truth.”
Alternatively, lawmakers could increase funding for MCILS directly in the state’s two-year budget. Democrats passed a basic budget in March with no new funding for MCILS. The budget committee has continued to make changes as state revenue and COVID relief funding have been revised. The Democrat caucus has discussed supporting more funding for MCILS, said Rep. Barbara Cardone (D-Bangor), who serves on the budget committee. The budget committee could add as much as $35.4 million, which is what MCILS asked for in October 2020, she said.
A spokesman for House Republicans said their caucus had not discussed MCILS funding and declined to comment.
The full $35.4 million package would almost double the budget of MCILS, which is still under investigation by a government oversight agency for its financial policies. Cardone said there is enough oversight for the Legislature to put the money toward public defense.
“I have always felt that the problems at MCILS, from however far back they stem, come from an underfunded system. They were being asked to do too much with too little,” Cardone said. “I don’t think anyone can make any headway on this until this is funded.”
At least 50 defense attorneys have temporarily or permanently stopped accepting court appointments this year, leaving 322 lawyers statewide working with MCILS, as of June 1. The agency is able to meet its obligations to assign lawyers so far, Andrus said, but it’s getting increasingly difficult.
“I am deeply troubled by the threat implied by the increasing workload in the system when we have no way to increase the number of attorney participants,” Andrus said.
Lawmakers have before them a plan to add nearly $40,000 a year to the paychecks of lawyers whose practices consist of majority court-appointed work by increasing the pay rate by $20 an hour— from $60 to $80. It would be their first raise since 2015.
MCILS is losing young, “bulldog” attorneys to state prosecutorial offices, said Howaniec, the Lewiston lawyer who is 62 and approaching retirement. Experienced lawyers are paid too little to cover office overhead or make a profit from a case, and younger lawyers have student loans that are too high to sustain themselves on court-appointed work at the current pay rate of $60 an hour, he said.
Robert Ruffner, an attorney who does almost exclusively court-appointed work in Kennebec, York and Cumberland counties, stopped accepting new cases in March. In a typical year, he would not have more than two cases going to trial at a time. Now he is expected to have multiple cases ready at the same time. Inconsistent court reopening plans have filled him with a feeling of foreboding.
“The whole system isn’t ready for this,” Ruffner said. “I don’t understand how the justice system thinks it’s going to push more cases through the exact same system that, if anything, is far more stressed than it was 18 months ago.”
Superior Court Chief Justice Robert Mullen said he is aware reopening courts and scheduling cases in multiple counties at the same time could push lawyers willing to accept new court appointments to need a break or stop, he said. But he said it was time for prosecutors and defense lawyers to get serious about which cases in the backlog they would take to trial or settle.
“You reach a tipping point,” Mullen said. “If I’m reading off 262 cases — that was the original trial list in Somerset County — we’re not going to try 262 cases in the month of June. We’ll be lucky if we probably get seven.”
While MCILS director Andrus was not able to predict how quickly the courts would move through the backlog, the chief judges for the district and superior courts said all cases ready for trial now would be completed within the next two years. How that will happen in Maine’s larger courts — Portland, Bangor and Augusta — isn’t clear.
With Mullen’s blessing, the Augusta court in Kennebec County plans to suspend all dispositional conferences — leaving it to defense lawyers and prosecutors to reach deals — to free judges to work on over 600 cases ready for trial, according to an email to prosecutors and defense lawyers shared with The Maine Monitor. Before the pandemic, the county criminal docket had around 150 trial-ready cases a month. It intended to clear the pileup by reopening with the same schedule, but “it has become apparent that this notion is something close to a delusion,” wrote Justice Michaela Murphy.
“The Judges here have spent a lot of time talking about what realistically can be done to address the problem and it has become very obvious to us that the Cavalry is not coming,” wrote Murphy.
As the Judicial Branch works through the backlog, the Legislature is considering a bill to add public defenders to the state’s defense counsel at MCILS. Lawmakers envision opening the state’s first trial-level public defender office in Kennebec County in January 2022. The proposal is estimated to cost $1.1 million in the first six months and nearly $2.2 million in the second year of the two-year budget.
Many of Maine’s criminal defense lawyers oppose the new office. The Maine Association of Criminal Defense Lawyers, or MACDL, said the proposed budget left out funding for experts and would have little effect on clients in the rest of the state. The group’s executive director, Tina Nadeau, told lawmakers, “It would be, we fear, performative and expensive for the projected value gained for the clients served.”
Some lawmakers and the ACLU of Maine say the state is not being aggressive enough by opening just one public defender office. The state should plan to fund and establish public defender offices in multiple counties in the next two years and beyond, said Zach Heiden, chief counsel of the ACLU of Maine.
The organization has threatened to bring litigation if the state does not make substantial improvements to the training and supervision of contracted lawyers. Heiden said he saw no alternative to a lawsuit in April, after lawmakers passed a budget in March that continued to underfund MCILS. His opinion has not changed.
“There are counties in Maine with a crisis — with a shortage of qualified defense lawyers,” Heiden said. “In Aroostook County they’re bringing in lawyers from Penobscot County, which is a pretty far distance to travel in order to hold court. And that’s just not sustainable. That’s an emergency situation, today.”
The resistance by some members of the criminal defense bar to public defenders was understandable, Andrus said. The offices could threaten their businesses and the “lone wolf” style of some lawyers, he said. But Andrus held firm that changes proposed by the commission and Legislature are needed.
“I certainly understand the anxiety that change brings about,” Andrus said. “It is necessary. It is definitely necessary.”