In the final six weeks of the year, Maine’s public defense agency is racing to meet multiple deadlines to overhaul its operations while also beginning a search for a new executive director.
A “very lean” staff of three people will be expected to run the state agency after outgoing director John Pelletier leaves on Dec. 11. Pelletier resigned earlier this month after more than a decade at the helm of the Maine Commission on Indigent Legal Services, or MCILS, amid mounting criticism of his leadership and oversight.
“We’ve got two gaping issues. One is keeping the lights on, and we’re losing a significant portion of the person power that’s able to do that,” said commissioner Mike Carey. “And the second piece, which is frankly even a bigger issue, is the metaphor of how do you rebuild the plane while it’s flying?”
Multiple reports this year have chronicled oversight problems at the agency, which provides legal services to people who are charged with crimes and cannot afford an attorney. Pelletier hired attorneys with disciplinary and felony records to defend Maine’s poorest defendants in court during his decade in charge, an investigation by The Maine Monitor and ProPublica found. MCILS also failed to oversee attorneys and the agency’s finances, according to a government oversight report released this month.
A search committee headed by Josh Tardy, a lawyer and lobbyist, will find the next director. Gov. Janet Mills, a Democrat, appointed Tardy as chairman of the commission in 2019 to improve the state’s defense agency.
Carey, Deputy Director Ellie Maciag, chief counsel of the American Civil Liberties Union of Maine Zach Heiden and president of the Maine Association of Criminal Defense Lawyers Jamesa Drake are also serving on the search committee with Tardy. They met for the first time on Nov. 13 and will advise the full commission on a candidate to replace Pelletier.
David Carroll, director of the nonprofit Sixth Amendment Center that reviewed Maine’s defense system in 2018 and brought national attention to its deficiencies, advised the committee to look beyond Maine for a new director.
“I hope they’ll do a national search for somebody, because Maine is a destination point now,” Carroll said. “Maine is very attractive to people from across the country. Getting somebody that’s run a system or created a system would be very important.”
The search committee plans to seek assistance from the National Association for Public Defense, or NAPD, for the director search.
A team of 16 public defense experts make up NAPD’s Systems Builder Committee, which assists with crafting job descriptions, posting jobs, searching for candidates, developing questions and conducting interviews to hire leadership at defense agencies. The goal is to find better candidates and professionalize what is usually an “ad hoc” search process, said NAPD executive director Ernie Lewis.
Lewis is a career public defender. He watched Kentucky’s public defender system be built from the ground up and was appointed to oversee the statewide system in 1996. NAPD supports public defender systems over alternatives, such as contracting private attorneys to represent the poor. Maine is the only state with no public defenders.
“We affirm the public defender model as the best model, but having said that we have lots and lots and lots of members from different kinds of organizations,” Lewis said.
Past director searches have cost between $8,000 and $30,000. Tardy said Maine’s search committee does not currently have any funding.
The gap in funding is part of a larger financial problem MCILS’ next executive director will inherit. Commissioners submitted a $35.4 million budget proposal to open Maine’s first two public defender offices, improve staffing and increase the reimbursement rate for court-appointed attorneys from $60 to $100 an hour — their first raise since 2015. The plan doubles the agency’s annual budget, but the governor indicated last week that she may not support the new spending.
“You’ve got two pretty independent and well-thought-of organizations saying things have got to change. That’s an ideal springboard for reform in Maine,” Lewis said. “Having said that, this isn’t going to be cheap, and it concerns me that folks think they can do reform on the cheap.”
Investment in public defense should be driven by what the system and the community needs, said Bonnie Hoffman, the director of public defense reform and training with the National Association of Criminal Defense Lawyers, or NACDL.
“You can’t arbitrarily say this is the amount of money that we’re willing to spend on defense if you’re not also going to say this is the amount of justice we’re willing to provide for our community, because really that’s what you’re saying,” Hoffman said.
Regardless of how the state provides public defense, its system will suffer if it is not resourced or does not have adequate staffing, the infrastructure to manage caseloads and the ability to act independently, Hoffman said.
Maine’s legal defense bar does not unanimously support the proposed addition of a public defender office.
In 2017, NACDL passed a resolution stating that it supported — where warranted by population and caseloads — a hybrid public defense system composed of institutional offices with full-time lawyers and meaningful participation by the private bar with equal access to training and resources.
The Maine Association of Criminal Defense Lawyers is an affiliate organization of NACDL and a large share of Maine’s defense lawyers are members.
Standards for lawyers looking to accept cases through Maine’s existing court-appointment system however, are also changing.
On Nov. 17, the commissioners gave initial approval to a major change to the attorney standards and qualifications. The vote was unanimous, but there are several more steps before the rules are final.
Under the new rules — printed in the commission’s November meeting packet — lawyers will be required to disclose any criminal charges, convictions and complaints of professional misconduct to MCILS. The director will have the authority to remove an attorney for any of those reasons. Attorneys also will be required to cooperate with any MCILS investigations and audits of billing discrepancies. Payments can be withheld from attorneys who do not comply.
The new rules also create a mandatory mentorship program that provides experienced co-counsel to new attorneys during their first 10 cases. And it gives MCILS staff new authority to reject applications, if there are a sufficient number of lawyers already on the roster in a geographic area.
The public will be able to comment on the changes at a hearing scheduled on Dec. 21 — the Monday before Christmas. A written comment period will remain open for 10 days afterwards.
The commission is legally required to review all comments and accept, reject or partially incorporate them into the rule change. If the proposal is substantially changed during the comment period, then the commission must restart the approval process and send it back for legal review, public hearing and public comment.
The commission is on a tight deadline to finish the rulemaking process as it must submit a final proposal to the Legislature by Jan. 8 to ensure lawmakers will review it in 2021. MCILS missed the deadline last session.