ACLU asks Maine judge to order release of jailed defendants without lawyers

The American Civil Liberties Union of Maine wants to expand its years-long lawsuit against the state as more and more low-income people are not being assigned lawyers, sometimes waiting for weeks.

The March 8 request comes after a judge rejected a second attempt at a settlement between the Maine Commission on Indigent Legal Services and people in need of lawyers, represented by the ACLU of Maine. The class-action lawsuit alleges that the state violates the constitutional rights to legal counsel and a speedy trial, which are protected by the Sixth Amendment and the Maine Constitution.

The commission provides lawyers to low-income people who cannot afford to hire one. But the number of cases without legal representation has skyrocketed since October, when there were about 73. There were at least 659 cases as of Friday.

A lack of competent counsel “has reached crisis levels,” the ACLU said in its 50-page filing. The state and the commission’s “lax approach to their statutory and constitutional obligations has resulted in a system that fails to provide attorneys to indigent defendants at their initial appearance and at every stage of the proceedings, resulting in denial of counsel under the federal and state constitutions.”

The judge’s Feb. 27 order told both sides to file motions to change any pleadings and set a trial to start June 24. Both sides had come to an agreement that addressed the issues in the original lawsuit, but were denied the ability to finalize it, the commission said Friday in a 21-page response to ACLU’s request to expand the scope of the lawsuit. The commission said a new ACLU filing would be unfair because of the upcoming trial.

A group of people in the lawsuit have had their Sixth Amendment rights, as well as their rights under Maine’s constitution, violated by their lack of lawyers, the ACLU filing said. It also said the state and the 16 county sheriffs are unlawfully detaining the group without lawyers, a violation of their constitutional right to freedom without illegal restraint.

The ACLU wants a judge to rule that the group of people in the lawsuit have been denied their right to counsel within 48 hours of their first court appearance. It also asked the judge to order the commission and all 16 county sheriffs to release those people from jail or dismiss their charges without prejudice.

The commission said in its filing that having the same lawyer represent someone, releasing people from jail and dismissing charges is something the commission “does not have the power to provide.” The commission does not have the power to appoint lawyers, instead it designates lawyers as eligible to take cases.

“There is no serious question that this system is broken,” the ACLU said in its filing. “The state is now routinely failing to appoint counsel for indigent defendants for extensive periods after their right to an attorney attaches.”

The ACLU filing names the state of Maine and numerous people and government agencies, including Gov. Janey Mills, Attorney General Aaron Frey and the commission’s executive director, Jim Billings.

The commission’s filing said the state does not count as a person in the lawsuit and there is no actual or threatened force in the alleged violation of Maine’s Constitution, which means the count should be dismissed. The state is also not a person who has custody of the people in the lawsuit, so they are not the correct entity to respond to the request to release people or dismiss charges.

Mills and Frey should not be included in the lawsuit because neither of them have control or oversight of the issue and they cannot fix the problems, according to the commission’s filing.