MAINE, USA — In a Bangor courtroom last week, Judge Meghan Szylvian ruled the state had violated the constitutional rights of a criminal defendant who had been in custody for nearly a month.
The defendant qualified for a court-appointed attorney but had not received one — as was the case, on Friday, for 45 other defendants in Penobscot County Jail.
Logan Perkins, the county’s first District Defender, argued the man should be released from jail, subject to bail conditions, citing a recent Oregon court decision that ruled defendants had to be released if the state didn’t provide an attorney within seven days.
Perkins went on to note that after the Supreme Court ruled in 1963 that defendants had a constitutional right to an attorney, “the state of Florida was compelled to release nearly 4,000 defendants that were in custody without counsel at that time.”
But Syzlvian cut her off, citing the time. “I’m very familiar with the case law,” Syzlvian said.
Perkins was serving as lawyer of the day, a temporary lawyer who provides brief representation during arraignments and counsel reviews. She didn’t take on any of the cases she saw that day, even though it pained her not to do so, she said.
Instead she’s working on a long-term solution: building a new public defender’s office at the epicenter of the state’s indigent defense crisis. This requires developing training programs, establishing clear processes and, most importantly, hiring attorneys.
The hiring has proven difficult.
Perkins, who began her role in early July, needs to hire five attorneys. So far, she has only been able to fill one position — from someone already working elsewhere in the state’s burgeoning public defender system.
That’s partly because of the reasons — demographic, geographic — that make it difficult to find many specialized workers in Maine, and partly because there are barriers that make it difficult to hire attorneys from other states.
“It has been challenging,” Perkins said. “We have seen relatively little interest from the existing private bar. We have seen some interest from out of state, but there are some structural barriers to bringing in those people.”
Many in the legal community, as well as the government, have pinned their hopes on a statewide public defender system to eventually solve, or at least mitigate, the indigent defense crisis.
Maine was the last state to implement a public defender system, launching a five-attorney roving Rural Defender Unit in 2022. Late last year, the first brick-and-mortar public defender’s office opened in Augusta. This summer, Perkins is launching an office in Bangor and Aroostook District Defender Toby Jandreau is doing the same in Caribou.
On Wednesday, the state announced it had hired Jesse Archer to launch a Lewiston office serving Androscoggin, Oxford and Franklin counties, and Max Coolidge to run an Ellsworth office taking cases in Hancock and Washington counties.
Meanwhile, there were 656 criminal defendants across the state in need of an attorney on Friday. Roughly 30 percent of those cases are in Penobscot County, home to about 10 percent of Maine’s population.
“We don’t need hundreds of lawyers to address the need,” said Frayla Tarpinian, the Capital Region District Defender whose Augusta office serves Kennebec and Somerset counties. “We need 50? 25? full-time, experienced attorneys.”
The Augusta office is fully staffed, with five attorneys, and the Caribou office has hired for all three of its attorney positions — but the first offices are likely the easiest to staff.
The plan is for the Lewiston office to eventually hire six attorneys, in addition to the district defender, and the Downeast office will hire two attorneys to support Coolidge, said Jim Billings, the executive director of the Maine Commission on Public Defense Services. The offices are also hiring paralegals, office managers, investigators and social workers.
The goal is to have public defenders eventually take 50 percent of the state’s indigent cases, but finding enough qualified attorneys is proving a challenge.
“Just because we create positions doesn’t mean we manifest new lawyers,” said Jandreau, District Defender for Aroostook County.
Hiring from away
Of the three offices that have begun taking cases — Bangor, Caribou and Augusta — recruitment problems seem most acute in Bangor.
Perkins estimated her office has received around 10 applications for the four attorney positions she is looking to fill. The limited applicant pool included some good candidates, but Perkins has run into challenges.
One applicant was a public defender from Minnesota. When it came to getting her licensed in Maine, the state’s required bar score proved an insurmountable obstacle.
In Maine, aspiring attorneys must score 270 on the bar exam to become licensed, a score as high as any state in the country. In Minnesota, a passing score is 260. The applicant passed the bar in Minnesota but her score was not high enough for Maine, Perkins said.
“By all accounts, they seemed to be very successful, seemed to be doing really well in their work,” Perkins said. “I think they were four points short of the Maine bar requirement.”
For attorneys with years of experience, the bar score requirement can be waived. But this process, overseen by the mostly volunteer Maine Board of Bar Examiners, can take anywhere from 6 to 8 months, if not longer, district defenders said. Even under normal circumstances, it can take a long time for out-of-state attorneys to get licensed in Maine.
“It would be great if we could hire all these out-of-state attorneys,” said Tarpinian. “We’d welcome them with open arms. But we’ve had a lot of trouble getting them sworn in.”
The Maine Board of Bar Examiners did not answer emailed questions about the process, referring them to the Judiciary. Courts spokesperson Barbara Cardone was unable to provide additional information.
The Maine Supreme Judicial Court has taken steps to address the long wait times. On Aug. 2, it invited public comment on a proposed change that would allow qualified attorneys working the public defender offices to temporarily practice until their bar admission is completed.
The search for candidates
Despite concerns about attracting attorneys to a rural region, the Caribou office has made more hiring progress than the Bangor office.
Two of the three attorneys hired for the Aroostook Public Defender’s Office are a married couple who were public defenders in Louisiana. They applied for both the Bangor and Caribou positions and were hired for Caribou, with the thought being it would be easier to find attorneys willing to move to Bangor than to an office near the Canadian border.
Both attorneys must wait for the Maine bar to accept them before they can take cases. For now they can only provide support to Jandreau, acting like paralegals.
Because Louisiana is overhauling its public defender system, turning from a system that represents nearly all indigent defendants using public defenders to one that uses more private attorneys, Jandreau anticipates that some of the state’s attorneys may be inclined to come to Maine.
There are likely public defenders in Louisiana who don’t want to set up their own practices and do the work without the benefits and support staff a public defender office can provide, he said.
“Louisiana is moving in the exact opposite direction of Maine,” Jandreau said. “I suspect Louisiana will be a source of more lawyers who don’t want to hang a shingle.”
Another source of attorneys is the Rural Defender Unit, whose members are moving to brick-and-mortar offices as the state aims to eventually transition the unit to focus on much-needed attorneys for parents in child protection cases.
Perkins hired an RDU attorney for the Bangor office, but transitioning them to the new offices doesn’t do anything to increase the state’s overall capacity.
Criminal defense bar members told The Monitor that in addition to convincing attorneys to move from out of state, creating a robust public defender system will require a regular pipeline of new attorneys. This will likely fall to the University of Maine’s Law School, the only one in the state.
At the moment, Maine’s public law school does not have a dedicated adult criminal defense clinic where student attorneys can take criminal cases under the supervision of experienced attorneys.
As the new public defender offices open, Maine Law can partner with them to place students in internships and help build their indigent defense experience, said Leigh Saufley, dean of the law school and former chief justice of the Maine Supreme Judicial Court.
“It is much easier for us to get that pathway set up for our students to go into that kind of work,” Saufley said.
The University of New Hampshire’s Criminal Practice Clinic already serves as a hiring pipeline to the New Hampshire Public Defender, a private, nonprofit organization established in 1972 that has 10 offices across the state. Instead of hiring public defenders piecemeal as Maine does, the New Hampshire Public Defender has a yearly class of new attorneys that go through a five-week training program together.
New Hampshire attracts many students from Maine who want to do indigent defense work but have not been able to do so in a public defense system, said Melissa Davis, a former public defender who now serves as the director of the University of New Hampshire’s Criminal Practice Clinic at the Franklin Pierce School of Law.
“I have a lot of students, and I talk to a lot of attorneys who work in New Hampshire and are only there because there is no program in Maine,” Davis said. “They say, ‘If Maine ever gets a program, I’m going.’”
Growing caseloads
Back in the Bangor courtroom, Judge Syzlvian heard from Penobscot County District Attorney Chris Almy about how to remedy the constitutional violation against the defendant, who had waited nearly a month in jail without an attorney.
Almy argued that even though the defendant’s constitutional right to counsel had been violated, the man’s bail should remain at $7,500, “given the severity of the case.” Court records show he had been charged with gross sexual assault, aggravated assault and falsifying evidence.
In an interview, Almy welcomed the addition of a public defender’s office, citing prosecutors’ growing caseloads.
“Defendants are unable to have their cases moved,” Almy said. “We can’t move them through the court process until they have a lawyer, so anything that can be done to buttress the criminal defense bar, we think is good.”
Because some cases aren’t moving, prosecutor caseloads grow as new cases come into the system.
“In our district, the caseloads for prosecutors is the highest in the state,” Almy said, noting that he, too, is having trouble hiring attorneys.
Syzlvian agreed with Almy that the defendant’s bail should not be reduced, citing “respect for public safety.”
If he still didn’t have an attorney in a week, he would be brought back before a judge, just as he had the week before, and the week before that, sitting in an overcrowded jail, requiring more of the court’s time, and a spot on a prosecutor’s growing caseload.
Then came the next defendant. Syzlvian would rule that he, too, had his Sixth Amendment rights violated. He would also stay in jail.
This story was originally published by The Maine Monitor, a nonprofit and nonpartisan news organization. To get regular coverage from the Monitor, sign up for a free Monitor newsletter here.
