With more than 600 criminal defendants now unable to find a court-appointed attorney, some Maine defense lawyers say the problem is only getting worse and court officials are turning a blind eye.

Since November, judges have been ordered to meet with jailed defendants within seven days of their initial appearance if they are constitutionally entitled to a lawyer but still haven’t been appointed one.

When the judicial system enacted that review process, only about 100 people lacked attorneys, roughly 40 of whom were in jail. The order says that if a judge still doesn’t have an attorney to appoint, then a temporary “lawyer of the day” is allowed to argue for reduced bail conditions or “other matters as necessary.”

Six months later, at least 630 people now lack attorneys, almost a quarter of whom are in jail, according to data from the Maine Judicial Branch.

Attorneys who serve as these lawyers of the day say judges are ignoring their arguments that these clients should be released or have their charges dropped because their constitutional rights are being violated.

Meanwhile, the defendants are spending even more time waiting – some as long as two to three months.

Many are behind bars, and many have multiple cases pending that often don’t move forward unless they give up and plead guilty without having consulted an attorney who has had time to review their entire case.

A reporter observed over Zoom in February as a man in Aroostook County negotiated a plea deal with a prosecutor in open court after spending about a week in jail without an attorney. He was arrested for an alleged probation violation and had spent about 15 minutes before the hearing with Neil Prendergast, who was serving as a lawyer of the day for dozens of people.

The judge accepted the man’s plea over Prendergast’s objections. The man was sentenced to 30 days with credit for time served.

“This is fundamentally a due process problem,” Prendergast told the judge. “I feel like a poor defendant without counsel is clearly getting different treatment” than one who can afford a lawyer.

Other lawyers told the Press Herald they’ve seen the same scenario play out in other bail review hearings with unrepresented defendants.

“These are human beings, no matter what they’re accused of, trapped in a system they’re not able to navigate on their own,” said Robert Ruffner, a Portland defense attorney who serves as a lawyer of the day in various county courts.

FALLING THROUGH THE CRACKS

In most of his seven-day reviews, Ruffner has asked judges to dismiss the charges or eliminate bail because he believes these defendants are being held illegally without a lawyer.

He has yet to persuade a judge to dismiss a case.

In some courts, Ruffner said, his mere presence has been used against him when he argues that a defendant’s constitutional right to a lawyer is being violated.

In other courts, a judge will appear surprised and simultaneously chastise him for not raising these arguments sooner, even though he’s only assigned to a defendant’s case for the day.

On May 17, Ruffner was the closest he had ever been to getting an unrepresented client’s case dismissed. He was in Cumberland County Superior Court for 24-year-old Leonardo Bryan-Metusala, who was arrested in February and charged with two felony-level counts of aggravated domestic violence assault.

Bryan-Metusala was immediately found eligible for a court-appointed lawyer after his first appearance. But 80 days later, he was still unrepresented and still in jail. He had been in court twice since then, on April 18 and May 9, only to be told there were no lawyers for him.

Meanwhile, prosecutors passed up three opportunities to give his case to a grand jury to indict him, which is usually the next step after a defendant has been charged. Under state law, that meant his case had to be dismissed.

But the law only calls for cases like that to be dismissed “without prejudice,” meaning prosecutors can re-charge defendants if they choose. Because of some immigration issues, Bryan-Metusala risked being detained by Immigration and Customs Enforcement and deported unless his charges were dismissed without any chance he would be re-charged.

And so, Bryan-Metusala waived his right to an indictment to avoid deportation – minutes before another attorney who was in the courthouse agreed to take his case permanently.

That lawyer, Andrew Edwards, did not respond to messages after the hearing seeking to discuss whether Bryan-Metusala’s months without an attorney might have a role in his defense moving forward.

Assistant District Attorney Angela Cannon declined to say why prosecutors never sought an indictment. It’s possible that if Bryan-Metusala had an attorney sooner, they would’ve asked about the delay.

A STATEWIDE PROBLEM

Bryan-Metusala’s case is a more extreme example of the issues playing out in Cumberland County; the severity of the crisis across Maine varies county by county.

He was one of about 140 people in Cumberland County who were waiting for a court-appointed attorney as of May 15, according to a list from the courts. Only about 15 of those people were in jail. Some defendants had been waiting for a month, and several others had been waiting for a couple of weeks.

But Aroostook and Penobscot counties, where the American Civil Liberties Union of Maine says there are unusually high rates of prosecution for their population size, have also consistently reported a disproportionate number of unrepresented defendants.

A list sent out by the judicial branch on May 22 showed nearly 55 people without attorneys who have been charged in Aroostook County, about a dozen of whom were in jail. It also included roughly 200 people without attorneys who have been charged in Penobscot County, almost 50 of whom were in custody. Some of those people have cases pending in both counties.

The ACLU of Maine is suing the state over unrepresented defendants and recently called attention to these growing waits in a new analysis. A judge recently allowed them to name Maine’s attorney general as a defendant in that lawsuit. The organization is also allowed to try and prove that sheriffs and the state are illegally imprisoning people by not giving them lawyers.

In the group’s new analysis, it found that as the number of people without attorneys has increased, so has the length of time people spend waiting for a lawyer.

According to the ACLU, there were 550 people in Maine who had been waiting a little more than a week for a lawyer as of May 8. Roughly 460 people had been waiting more than 20 days, and about 370 had been waiting for a month.

Earlier this year, lawmakers authorized the Maine Commission on Public Defense Services to begin work on opening two public defense offices for Aroostook and Penobscot counties. However, commission staff have pointed out it won’t make an immediate difference; they still have to hire attorneys without taking private attorneys who are already doing the work.

WHOSE OBLIGATION? 

Ruffner and Prendergast took their frustrations with these seven-day reviews to commission leaders.

“We have always maintained that (the lawyer of the day program) is not a substitute for providing meaningful representation under the Sixth amendment,” Ruffner said at the commission’s May 14 meeting.

The ACLU of Maine agreed.

“Seven-day reviews are a useful tool for understanding what is happening, but simply keeping track and with seven-day reviews and providing people with a ‘lawyer of the day’ does not comply with the Sixth Amendment,” spokesperson Samuel Crankshaw said. “The U.S. Constitution requires the government to provide effective assistance of counsel to people who cannot afford their own attorney when it chooses to charge a person with a crime.”

Ruffner even asked the commission to consider not providing lawyers of the day for these reviews in an effort to send a message to the court. He argued that these attorneys are being “used as lipstick to put on the pig that is this problem.”

“The courts are really not taking seriously the constitutional argument we’re making,” Prendergast said in agreement.

Several commissioners acknowledged that the seven-day reviews have revealed a real problem, but they aren’t yet taking any action.

“It’s really astonishing and we have very much a problem,” Commission Chair Joshua Tardy said at the meeting. “We own it. The Maine Commission on Public Defense Services, we understand that we don’t have enough attorneys to make these appointments.”

Commission member David Soucy, a former district judge, told other members that the solution rests with the court. For some of these cases, he said, dismissal without prejudice could be a “simple solution.”

“What’s happening is really deplorable,” Soucy said. “I think the solution at this point rests with the court.”

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