More than 20 criminal defendants in Aroostook County went more than 1,300 combined days without an appointed attorney despite being deemed eligible by a judge, according to a memo last month from the Maine Commission on Indigent Legal Services.

Clerks were assigning attorneys who weren’t eligible according to the commission’s roster, and attorneys were being assigned “retroactively” to the day that a judge granted a defendant’s motion for legal representation, not when the attorneys actually began representing the defendant.

The memo lists 23 people whose requests for legal help were granted by a judge and who spent an average of about 60 days waiting for an attorney. MCILS staff were able to break down the number of days 22 of those people went without an attorney, the highest being 231 days.

But these were only the defendants whose granted motions were included in the courts’ records.

“It is unknown how many defendants have made motions for counsel which do not appear on the courts’ docket records,” the memo said.

The memo, dated June 7, “is not final” and does not contain any official policy statements or findings, Executive Director Justin Andrus said on Friday.

“To the best of my knowledge, the facts set out are accurate through June 7th,” Andrus wrote in an email Friday. “The document does not reflect ongoing efforts from both the clerks and MCILS to keep things running smoothly.”

The commission says that all cases in Aroostook County are now staffed.

When called Friday for an interview about the commission’s memo, a clerk for the Aroostook County Superior Court in Caribou referred a reporter to the statewide administrative office for the courts. Court administrator Amy Quinlan said in an email to the Press Herald that she might have more information next week.

Maine is the only state in the nation without a public defender’s office. Although state lawmakers agreed during the last legislative session to create the state’s first office for rural public defenders, most cases will still be covered by reimbursing those private attorneys who sign up to represent Mainers who can’t afford their own lawyers.

Andrus said the memo was shared in response to public records requests from numerous entities, including the Portland Press Herald, seeking more information on 18 people who spent months without counsel in Aroostook County. Commission staff discussed this during a meeting on May 24.

Attorney Darcy Fisher prepared the memo for the commission about one month after it first began analyzing court and jail data from Aroostook County.

On April 8, commission staff reviewed a jail roster from April 1 and found there were 12 people in Aroostook County jail without attorneys, two of whom had been approved and another nine who had already previously been approved in earlier criminal cases. On May 3, Aroostook County courts provided the names of 14 defendants who had not yet been assigned attorneys at that time.

NOT USING THE ROSTER

The memo says clerks in Aroostook County hadn’t been using a roster of eligible and available attorneys provided by the commission. Instead, clerks were emailing individual attorneys, some of whom were not able to take on the work they were being assigned.

“In some instances, the clerks only reach out to one or two attorneys, even when there are many more attorneys on the roster,” the memo stated. “Meanwhile, the defendant – whose motion for appointment of counsel has been granted – does not get an attorney appointed to them.”

Sometimes, after finding an attorney, clerks appoint the attorney “retroactively” to the date when a judge approved the appointment of counsel. 

“This is problematic for several reasons,” the memo stated. “First, the defendant was deprived of their constitutional right to counsel by the court. Second, there is no record of that deprivation because the court’s record is inaccurate (i.e., the record reflects that a defendant had counsel for a period during which they did not, in fact, have counsel).”

Judges were orally appointing attorneys from the bench, the memo also noted, but then it would take months for the court to send a written notice of appointment. Sometimes, a judge would orally appoint one attorney and the written notice would mention a different attorney. 

“The uncertainty as to whether the attorney has been appointed results in a constructive denial of counsel because attorneys do not know for certain whether they have been appointed until they receive the notice of appointment,” the memo said. 

Andrus said the commission will continue to remind attorneys who are assigned to a case and wish to withdraw that they are still involved until a new attorney is appointed and actually begins the work.

DATA EXCHANGE OFFERS HOPE

He also said the commission is hoping to launch a data exchange with the Maine Judicial Branch so commission staff can see which criminal defendants in the state don’t have attorneys.

The memo lists a handful of occasions when attorneys filed a motion to withdraw and a defendant would go weeks without hearing from their newly appointed attorney.

In March, the American Civil Liberties Union of Maine announced it was suing the commission for systemic failures, and failing to uphold its obligations under the Sixth Amendment. A judge ruled in May that the case will continue, and has yet to rule on whether the six incarcerated plaintiffs in the case will receive class certification, meaning they will represent defendants around the state.

“Most of our lawsuit is focused on what happens after a lawyer has been appointed,” said Zachary Heiden, legal counsel for the ACLU. “But this is even a problem before that, and bigger than that. If someone isn’t getting a lawyer at all, that in many ways is an even deeper and serious constitutional violation.”