This article was produced in partnership with The Maine Monitor, which is a member of the ProPublica Local Reporting Network.
Gov. Janet Mills of Maine publicly called for a bipartisan effort during the next legislative session to reform the state’s system for defending poor people accused of crimes in response to an investigation published by The Maine Monitor and ProPublica.
Mills said last week that she was “disturbed” by articles from the news organizations that showed that the Maine Commission on Indigent Legal Services, or MCILS, had contracted attorneys with criminal backgrounds to represent impoverished clients.
A Democrat and former state attorney general, Mills said she would push to improve the system after receiving the findings of an ongoing state financial investigation and recommendations from the commissioners she appointed in 2019 to oversee the state agency.
The findings and recommendations “will help inform her discussions with lawmakers in the coming session as they consider how to improve both the work and accountability of MCILS so that low-income Maine people may always receive high-quality legal representation that is their Constitutional right,” said Lindsay Crete, the governor’s press secretary.
The Constitution requires states to provide attorneys to defendants who cannot afford to hire one. Maine is the only state in the country that satisfies the requirement without any public defenders. Instead, it relies upon private attorneys contracted with MCILS and appointed by judges to represent the indigent.
State lawmakers with power over judicial matters said they were troubled by the misdeeds of commission lawyers — ranging from repeat drunken driving to possession of child pornography — detailed in the articles. Democrats and Republicans said they would seek bipartisan support to modify the state’s defense system.
State Rep. Donna Bailey, a Democrat in York County and co-chair of the Judiciary Committee, said the articles joined a growing list of government and nonprofit reports that have found fault with the state’s indigent defense system. She hoped it would be “enough impetus” for lawmakers to agree on change and fund it adequately next session, she said.
“I don’t think we have a choice because in the long run it’ll cost us more if we don’t fix it,” Bailey said. “People have a constitutional right to be represented and represented well in the court. It’s not optional.”
State Sen. Lisa Keim, a Republican in Oxford County, said the newly published examples of MCILS’s “egregious” lack of oversight could be the motivation that legislators need to unite around changing the defense system. Keim has been driving to reform the system since 2016.
“Unfortunately, when you have a super-negative story everyone gets painted with the same brush. Or so it feels,” Keim said. “But without having that highlighted, I’m afraid that there wouldn’t be enough energy and drive to create the changes we’ve known for some time that we definitely need to make.”
State Sen. Michael Carpenter, an Aroostook County Democrat who chairs the Judiciary Committee with Bailey, said he had no idea that MCILS was hiring attorneys with criminal records. The news came as a surprise even though he worked as a court-appointed attorney in criminal and guardianship cases for many years.
“That’s pretty startling stuff in there in terms of the laxity or almost cavalier attitude about” attorney conduct, Carpenter said.
Executive director John Pelletier has led the agency since it opened in 2010. He did not respond to The Maine Monitor’s request for comment. He also declined numerous interview requests or to answer a detailed list of questions sent to him by The Maine Monitor and ProPublica prior to the publication of last week’s articles.
Lawmakers on both sides of the aisle expressed concern over how to pay for the reforms at a time when the pandemic has wreaked havoc on state finances. Revenue shortfalls and program cuts will make investing in attorneys and criminal defendants a hard sell, lawmakers said.
Rep. Trey Stewart, the No. 2 Republican in the state House of Representatives, said Mills would have to cut deeper into existing programs to find the money to fix any problems. Stewart and Carpenter are locked in a contentious battle for the District 2 Senate seat in Aroostook County.
“Frankly, it’s got to start with the governor,” Stewart said. “If the governor doesn’t ask for it in her budget, it’s probably not going to happen.”
Commissioners are supposed to submit a new budget for MCILS on Oct. 19. Among the proposed reforms are expanded staffing to increase oversight and the creation of a pilot public defender office in Kennebec County. Rough estimates are that such changes would cost $32 million annually — well above the nearly $20 million allocated to the commission in 2020.
Josh Tardy, a former Republican state lawmaker and lawyer who serves as chair of the commission, said he is confident that Mills understands the need to change the system. But he, too, noted that money is tight.
“I recognize that what we propose to the chief executive is going to be competing with many, many other issues in very dire budget times,” said Tardy, who served with Mills in the legislature.
MCILS has come under fire repeatedly for its supervision of commission attorneys, sparking numerous investigations. Last year, The Maine Monitor found that some attorneys were billing for amounts of money that would have required more than 80 hours of work a week throughout the year.
Lawmakers are expecting a report on the commission’s oversight of billing practices next month. Maine’s Office of Program Evaluation and Government Accountability has been examining whether the commission’s employees could verify the accuracy of bills submitted by commission lawyers. The report is finished, but remains confidential.
“We have the worst of both worlds. Attorneys who are overcharging the state and attorneys who are abusing their clients,” said state Sen. Shenna Bellows, a Democrat in Kennebec County and former executive director of the American Civil Liberties Union of Maine.
Another hurdle to reforms may come from the attorneys who work for the commission, which pays $60 an hour. The Maine Monitor analysis showed some law firms with lawyers who contract with MCILS pulled in more than $150,000 a year from the state agency.
Attorneys who rely on case assignments are already organizing to defend MCILS, according to emails shared with The Maine Monitor and ProPublica.
“There is no appetite, truthfully, among the people whose livelihood depends on receiving assignments for a system that might prevent them from receiving assignments,” said Ron Schneider, an attorney and one of the commissioners appointed by Mills to examine the agency.
The Maine Association of Criminal Defense Lawyers did not return requests for comment.
The budget will be a “potential decision point” for whether the ACLU of Maine will file a lawsuit against the state for failing to provide effective legal counsel to the poor, said Zach Heiden, the organization’s chief counsel. MCILS has historically not asked for more resources to meet its obligations to defendants, he said.
“It’s very serious and it’s something we’re still very serious about doing,” Heiden said.